M.A. Perrotta v. Bureau of Driver Licensing ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Anthony Perrotta :
:
v. : No. 1122 C.D. 2018
: Argued: March 14, 2019
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: August 14, 2019
The Commonwealth of Pennsylvania, Department of Transportation, Bureau
of Driver Licensing (Department) appeals from the Order of the Court of Common
Pleas of Delaware County (common pleas), dated July 19, 2018, which granted
Mark Anthony Perrotta’s (Licensee) application for supersedeas and appeal from
the Department’s denial of his applications for an ignition interlock and non-
commercial learner’s permit (Denial). The Department permanently denied
Licensee’s driving privileges pursuant to Section 1503(a)(8) of the Vehicle Code,
75 Pa. C.S. § 1503(a)(8), for repeated violations of Chapter 15 of the Vehicle Code
by obtaining more than one false driver’s license.
In addition to granting supersedeas, common pleas found that the
Department did not meet its burden to support the Denial and violated Licensee’s
due process rights at the pre-Denial Department hearing. The Department
contends common pleas erred as a matter of law in reaching these conclusions.
Upon review, we agree that the Department did not meet its burden to support the
Denial. However, common pleas could not order the Department to grant a license
to Licensee. Accordingly, we vacate that portion of the Order and instead order
the Department to process Licensee’s submitted applications and documentation
for license restoration in accordance with the Department’s governing regulations
and procedures in light of the following opinion.
I. Factual Background
a. Perrotta I
Licensee and the Department have a contentious history. As recounted by
this Court in Perrotta v. Department of Transportation, Bureau of Driver
Licensing, 110 A.3d 255, 256 (Pa. Cmwlth. 2015) (Perrotta I), since 1991,
Licensee has been issued three different licenses under three different names, two
of which were not his own (false licenses).
Licensee first applied for and received a license in 1991 under the
name of Mark N. Perrotta. In 1999, [the Department] issued Licensee
a second license, under his own name, Mark Anthony Perrotta [(true
license)]. In 2001, [the Department] cancelled the 1991 license for
fraud and merged the 1991 and 1999 license records, thus assigning
some fourteen violations to Licensee’s driving record. [The
Department] suspended the 1999 License in August 2001. Licensee
then secured a third license in 2002, under his deceased brother’s
name, Louis Frank Perrotta. [The Department] revoked the 1999
license in August 2003, and the license remains revoked to this day.
[The Department] cancelled the 2002 license for fraud in May 2012,
and merged the 1999 and 2002 license records. Licensee was
prosecuted for [forgery1] in association with the 2002 license and pled
1
The parties represented in the proceedings for Perrotta I that Licensee was convicted of
fraud for one of the false licenses. In the present case, the parties use “fraud” and “forgery”
(Footnote continued on next page…)
2
guilty. Thus, Licensee’s only remaining license, the 1999 license
issued in his own name[, the true license,] is currently revoked.[2]
Id. at 256-57. In 2013, the Department mailed Licensee a notice of denial
informing him that he was being denied the ability to obtain a license pursuant to
the Department’s authority under Section 1503(a)(8). Id. at 257. Section
1503(a)(8) provides:
(a) Persons ineligible for licensing.—The [D]epartment shall not issue
a driver’s license to, or renew the driver’s license of, any person:
....
(8) Who has repeatedly violated any of the provisions of this
chapter.[3] The [D]epartment shall provide an opportunity for a
hearing upon invoking this paragraph.
75 Pa. C.S. § 1503(a)(8).
Licensee appealed that notice, and common pleas granted the appeal. The
Department, in turn, appealed to this Court, which affirmed, holding the
Department did not have the authority under Section 1503(a)(8) to issue a notice of
denial until Licensee had actually applied for a license. Perrotta I, 110 A.3d at
_____________________________
(continued…)
interchangeably when speaking about Licensee’s conviction. In any event, common pleas found,
based on a Department witness’s testimony, that Licensee was convicted of forgery. (Common
pleas’ Finding of Fact (FOF) ¶ 102.) Licensee’s criminal history record is not in the record
before us, and we accept common pleas’ conclusive finding, as the exact charge for which
Licensee was convicted has no bearing on our analysis and conclusion.
2
A revocation is a “formal action” to terminate a license. Section 102 of the Vehicle
Code, 75 Pa. C.S. § 102. At the expiration of the revocation period, a licensee can only have
operating privileges restored “upon submission and acceptance of a new application.” Id.
3
Chapter 15 governs driver’s licensing. It includes, in pertinent part, requirements and
procedures for license issuance, suspension, and revocation.
3
260. Because Licensee had not done so, we held the Department’s actions were
premature. Id.
Following Perrotta I, the Department mailed Licensee two Restoration
Requirements Letters (Restoration Letters) in 2016, notifying Licensee of what he
“must do to restore [his] driving privilege,” which included paying a restoration
fee, installing an ignition interlock system, and applying for an ignition interlock
learner’s permit. (May 29, 2018 Hearing, Exs. D1, D2.) Licensee complied with
these requirements and submitted to the Department applications for an ignition
interlock and a non-commercial learner’s permit in December 2016. (Common
pleas’ Finding of Fact (FOF) ¶ 16.) The Department again denied Licensee’s
applications pursuant to Section 1503(a)(8), and Licensee appealed. Common
pleas remanded the matter for a departmental hearing, as required under Section
1503(a)(8),4 following which, the Department mailed Licensee the Denial on
January 26, 2018, stating:
This is an Official Notice of Denial of your ability to obtain an Initial
Issuance, Renewal[,] or Duplicate of your Driver License. This
[a]uthority is provided by Section 1503(a)(8) of the Pennsylvania
Vehicle Code. This action is as a result of your repeated violations of
Chapter 15 of the Pennsylvania Vehicle Code by obtaining more
than one false driver license or identification card from the
Department.
(Reproduced Record (R.R.) at 11a (emphasis added).) Licensee appealed to
common pleas and filed an application for supersedeas.
4
In the interim, Licensee again submitted a non-commercial learner’s permit application,
which the Department denied, before the Department provided the opportunity to schedule the
hearing. (FOF ¶ 24; Reproduced Record (R.R.) at 395a-98a.)
4
b. Hearings before common pleas
Common pleas held two hearings, the first on February 6, 2018, to consider
Licensee’s application for supersedeas, at which Licensee testified, and the second
on May 29, 2018, for a de novo review of the merits of Licensee’s appeal, at which
the Department’s witnesses testified. Common pleas did not make a decision on
the application for supersedeas after the first hearing, waiting until after the hearing
on the merits to issue the Order encompassing both.
At the supersedeas hearing, Licensee testified as follows. After receiving his
most recent Restoration Letter, Licensee complied with the requirements set forth
therein but did not receive a license when the suspension period expired. Licensee
attended the Department hearing, at which the Hearing Officer and a note taker
were present on the Department’s behalf. The Department did not present
witnesses or evidence; rather, the Hearing Officer asked a few informal questions
to which Licensee responded and asked a couple questions of his own. Licensee
requires a license in order to operate his plumbing business, as his employment
requires him to drive to customers’ homes. Licensee completed drug and alcohol
rehabilitation classes after being released from prison and has not consumed any
alcohol or drugs since then. (FOF ¶ 50.) Licensee did obtain the two false licenses
and had other Chapter 15 violations on his driving record unrelated to the false
licenses.5 Licensee has not had any violations of the Vehicle Code since February
2006. (Id. ¶ 39.)
5
At both the Department hearing and the supersedeas hearing, Licensee testified that
some of the driving violations on his driving record, originating under Chapter 15 and elsewhere
in the Vehicle Code, should be attributed to his deceased brother. Licensee reasoned that this
error resulted from the merging of driving records when the false license he obtained in his
deceased brother’s name was cancelled. As discussed below, because the Department only
(Footnote continued on next page…)
5
At the de novo hearing on the merits before common pleas, the Department
presented the testimony of the Hearing Officer, the Director of the Department’s
Risk Management Office, the Section Manager of the Bureau of Driver Licensing,
and an Administrative Officer, who also served as the note taker at Licensee’s
Department hearing. These witnesses testified about the Department hearing.
Generally, Department hearings under Section 1503(a)(8) are an opportunity for a
licensee to explain why the licensee has obtained multiple licenses. A hearing
officer and note taker are present on the Department’s behalf at Department
hearings, but notes of testimony are not usually prepared,6 and no written findings
of fact are made. At Licensee’s hearing, there was no sworn testimony, and the
Department did not present any documents into evidence. Following a Department
hearing, a hearing officer presents a summary of findings to a Department panel
(Panel), which is comprised of an attorney from the Chief Counsel’s Office,
administrative officers, management officers, and a license control manager. The
Panel makes the final determination, although the hearing officer does not have a
vote in that process. The Panel considers the licensee’s Chapter 15 violations,
driver safety, and whether the false licenses create national security or public
safety concerns. (Id. ¶¶ 87-88.)
The Department’s witnesses who served on the Panel testified as follows to
the particular considerations of Licensee’s case. Licensee had various Vehicle
Code violations, some of which were outside of Chapter 15. Licensee’s Chapter
_____________________________
(continued…)
alleged it was denying the license on the basis of the false licenses, we need not determine which
other Chapter 15 violations are properly attributed to Licensee.
6
Hearing Officer testified that notes of testimony were prepared for Licensee’s
Department hearing only because the matter had been remanded by common pleas. (FOF ¶ 116.)
6
15 violations included one violation for failure to make a payment on a ticket
under Section 1533 of the Vehicle Code; three violations for driving with a license
suspended for driving under the influence (DUI) under Section 1543 of the Vehicle
Code; and three violations for chemical test refusal under Section 1547 of the
Vehicle Code, 75 Pa. C.S. §§ 1533, 1543, 1547.7 (FOF ¶ 147.) The Panel
considered all of Licensee’s Chapter 15 violations, including those unrelated to the
two false licenses. Licensee procured the false licenses due to “financial
hardship,” (id. ¶ 120), but had not used the false licenses to obtain credit cards.
Licensee served four years in prison and successfully completed eight years of
probation after his conviction in 2006. Licensee completed the requirements set
forth in the Restoration Letters, but a license was not issued because the
Department “was ordered . . . not to do anything regarding the processing of the
Application until the [Section] 1503(a)(8) review began.” (Id. ¶ 169.)
c. Order and Appeal
Based on the testimony, common pleas issued findings of fact and its Order
granting both the application for supersedeas and Licensee’s appeal. Common
pleas ordered the Department to remove from Licensee’s driving status the
designation of “suspended, revoked and expired,” display Licensee’s driving status
as “restored,” accept Licensee’s applications for an ignition interlock and non-
commercial learner’s permit, and grant the license upon payment of costs.
7
As for the non-Chapter 15 violations on Licensee’s Driving Record, common pleas
found that Licensee had 11 DUI convictions, pursuant to Sections 3731 and 3802 of the Vehicle
Code, 75 Pa. C.S. §§ 3731, 3802, and 2 fleeing and eluding a police officer convictions under
Section 3733 of the Vehicle Code, 75 Pa. C.S. § 3733. (FOF ¶ 142.)
7
The Department appealed, asserting, inter alia, in its statement of errors
complained of on appeal (Statement) pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), Pa.R.A.P. 1925(b), that common pleas erred in determining the
Department did not meet its burden to support the Denial and denied Licensee due
process.8 In its opinion pursuant to Pennsylvania Rule of Appellate Procedure
1925(a), Pa.R.A.P. 1925(a), common pleas first explained that the Department did
not meet its burden to justify the Denial. Common pleas recounted Licensee’s
Chapter 15 violations and acknowledged that any violations relating to controlled
substances did not fall under the purview of Chapter 15. Licensee did not use the
false licenses to identify himself to police or to obtain credit cards, common pleas
found, and it was “abundantly clear” that Licensee’s reason for obtaining the false
licenses was “solely based on financial hardship” and “so that he could work.”
(Rule 1925(a) Opinion (Op.) at 25.) Further, common pleas reasoned that Licensee
had no violations since February 2006, completed drug and alcohol classes, and
consumed no alcohol or drugs. Common pleas also noted that, under Section 1554
of the Vehicle Code, 75 Pa. C.S. § 1554, an individual may be eligible for a
8
Because common pleas granted Licensee’s application for supersedeas in the same
Order in which it granted Licensee’s appeal, the Department also asserted in its Statement that
common pleas erred by granting Licensee the supersedeas. Nonetheless, pursuant to
Pennsylvania Rule of Appellate Procedure 1736(b), Pa.R.A.P. 1736(b), the Department’s appeal
to this Court operated as a supersedeas in its favor pending this Court’s decision on the merits.
Therefore, upon the Department’s appeal, Licensee filed with common pleas a petition to stay
the Department’s automatic supersedeas, which common pleas granted. The Department then
filed with this Court a Motion to Reinstate Automatic Supersedeas under Pa.R.A.P. 1736(b). By
opinion and order of a single judge of this Court dated November 20, 2018, we granted the
Department’s motion, vacated common pleas’ order, lifted the stay entered by common pleas,
and reinstated the automatic supersedeas pursuant to Pa.R.A.P. 1736(b). Perrotta v. Dep’t of
Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 1122 C.D. 2018, filed November 20,
2018) (Perrotta II).
8
probationary license if the individual has not had a violation for 6 years, even if the
individual has 22 or more violations on the driving record for offenses enumerated
in Sections 1532, 1539, and 1543 of the Vehicle Code, 75 Pa. C.S. §§ 1532, 1539,
1543.9 Given this and Licensee’s lack of violations since 2006, common pleas
reasoned that the Department did not meet its burden for the Denial implementing
a lifetime ban.
With regard to due process, common pleas explained that there was nothing
in the record evidencing a written procedure for conducting Department hearings;
rather, Department hearings under Section 1503(a)(8) were informal opportunities
for licensees to “talk.” (Rule 1925(a) Op. at 32.) Common pleas reasoned that this
hearing, during which the Department called no witnesses nor presented any
documentary evidence, was “not what due process requires.” (Id.) Noting the
Department’s regulations for administrative practice, common pleas concluded that
the Department did not follow those procedures. Common pleas determined that
Licensee was denied due process in this “pro forma ‘chat session,’” which did not
provide him a meaningful opportunity to challenge the Department’s Denial. (Id.)
Before this Court, the Department argues that common pleas erred by
concluding that the Department: (1) did not meet its burden for the Denial; and (2)
deprived Licensee of due process. Because the Department had the burden at the
de novo hearing before common pleas to establish a basis for the Denial by a
preponderance of the evidence, our review is based on the facts as found by
9
Section 1532 relates to suspensions of operating privileges after conviction of
enumerated crimes, which include, aggravated assault by vehicle while DUI, accidents involving
death or personal injury, careless driving, and reckless driving. 75 Pa. C.S. § 1532. Section
1539 provides for suspension of operating privileges upon accumulation of points. 75 Pa. C.S.
§ 1539. Section 1543 creates an offense for driving while one’s operating privilege is revoked.
75 Pa. C.S. § 1543.
9
common pleas. See Rutkowski v. Dep’t of Transp., Bureau of Driver Licensing,
780 A.2d 860, 862 (Pa. Cmwlth. 2001). Our review of common pleas’ “decision in
a driver’s license appeal is limited to a determination of whether findings of fact
are supported by substantial evidence, [whether] an error of law was committed, or
[whether] the court abused its discretion.” Fowler v. Dep’t of Transp., Bureau of
Driver Licensing, 2 A.3d 1282, 1284 (Pa. Cmwlth. 2010).
II. Discussion
a. Parties’ Arguments
The Department first claims common pleas erred because the Department
met its burden for the Denial under Section 1503(a)(8), arguing as follows.
Individuals are prohibited under Section 1501(c) of the Vehicle Code, 75 Pa. C.S.
§ 1501(c), from having two or more driver’s licenses.10 Licensee admitted, and
common pleas found, that Licensee had two false licenses in violation of Chapter
15. Based on case law regarding the definition of “repeated,” Licensee’s actions in
obtaining two false licenses are “repeated violations” warranting the Department’s
actions under Section 1503(a)(8). In addition, the Department argues additional
considerations, such as security and public safety, also justify the Denial. As
explained by one of Department’s witnesses before common pleas, the Department
considers driver safety and the “safety of the driving public” in a Section
1503(a)(8) analysis because “someone who would assume [false] identities” and
then “incurs violations under the false identities should not be on the road.”
10
Section 1501(c) sets forth the general requirement that drivers be licensed and limits
the number of licenses an individual may have, stating that “[n]o person shall be permitted to
have more than one valid driver’s license issued by this or any other state at any time.” 75 Pa.
C.S. § 1501(c).
10
(Department’s Brief (Br.) at 14.) At argument before this Court, the Department
elaborated on this argument, asserting that Section 1503(a)(8) is the mechanism
through which the Department protects the integrity of the licensing system and
deters future violations. The Department further argued that the Panel considers
whether a licensee has demonstrated changed circumstances and good intentions
for restoring the license and complying with the law in the future. In the
Department’s view, Licensee has repeated Chapter 15 violations and has not taken
responsibility for his actions or shown remorse; thus, the Department believes it
met its burden to justify the Denial.
Licensee asserts that common pleas correctly determined that the
Department did not meet its burden and argues as follows. In relation to obtaining
a license in his brother’s name, Licensee was charged with violating Section 1571
of the Vehicle Code, 75 Pa. C.S. § 1571, which makes it unlawful for an individual
“[t]o exhibit or cause or permit to be exhibited or have in possession a fictitious or
fraudulently altered driver’s license.” However, Licensee pleaded guilty to
forgery under Section 4101 of the Crimes Code, 18 Pa. C.S. § 4101, which is not
a Chapter 15 violation. Thus, Licensee does not have “repeated” Chapter 15
violations for false licenses to warrant the Denial. Moreover, even if all of
Licensee’s Chapter 15 violations reflected in his Driving Record are considered,
this does not rise to the level of repeated violations contemplated by Section
1503(a)(8), particularly in light of the Department’s admission that an individual
with 22 offenses may still obtain a probationary license if all other requirements
are met. 75 Pa. C.S. § 1554(b)(2)(iv). Further, a denial of operating privileges is a
severe consequence, particularly when it is a lifetime ban, as it “affects a person’s
ability to earn a living, to raise a family, [and] . . . to move freely.” (Licensee’s Br.
11
at 8.) Common pleas correctly determined Licensee’s violations are insufficient to
deprive Licensee of his operating privileges for life because he “has done
everything that the legislature has required[,] . . . rehabilitated himself, served 4
years in the state penitentiary, . . . and [he] should not be penalized additionally
when not called for by the statute.” (Id. at 9.) Licensee asks this Court to affirm
common pleas’ Order.
b. Licensee’s Violations
We initially examine which of Licensee’s violations are before us for
purposes of the Denial. It appears the Department Panel and common pleas
considered all of Licensee’s Chapter 15 violations. However, the Department, in
its notice prior to the Department hearing and in the Denial, notified Licensee that
the reason it was denying him a license was Licensee’s “repeated violations of
Chapter 15 of the Pennsylvania Vehicle Code by obtaining more than one false
driver license or identification card from the Department.” (R.R. at 11a, 373a
(emphasis added).) Because these documents, by their plain language, gave notice
that the Chapter 15 violations that supported the license denial were those relating
to Licensee obtaining the false driver’s licenses, we will consider only whether
those Chapter 15 violations support the Denial.11
Although the parties argue whether it was Section 1501(c) or Section 1571
of the Vehicle Code that Licensee violated, we do not need to resolve that
question. Licensee has admitted to obtaining the false licenses in violation of
11
To the extent common pleas considered the other violations, the error was harmless.
Common pleas granted Licensee’s appeal despite considering all of the violations. Therefore,
we must conclude that common pleas would have reached the same result had it only considered
the false licenses.
12
Chapter 15, (FOF ¶¶ 57-58), and the exact section that he violated is not relevant
for our analysis of the Denial. With this in mind, we turn to the Department’s
Denial, an action that permanently denies Licensee of his operating privileges.12
Common pleas concluded that the Department did not meet its burden for
the Denial implementing a lifetime ban on Licensee’s operating privileges. We
agree. Outside of Perrotta I, the appellate courts have not interpreted Section
1503(a)(8). However, this Court and the Supreme Court have addressed the
penalties of lifetime bans or permanent license revocations in other situations,
including professional licensing and commercial driver’s licensing. Although not
squarely on point, these cases provide guidance on reviewing a license denial in
light of the severity of the penalty.
c. Revocations of Professional Licenses
This Court has noted that where statutes impose punishment, such as the
revocation of a professional license,13 they are penal in nature. McGrath v. Bureau
of Prof’l & Occupational Affairs, State Board of Nursing, 146 A.3d 310, 316 (Pa.
Cmwlth. 2016), aff’d, 173 A.3d 656 (Pa. 2017). Accordingly, this Court often
applies the rule of lenity to construe such statutes against the government based on
12
We note that Department represented at argument before us that the Denial was not a
lifetime ban. This representation is inconsistent with the Department’s stance in Perrotta I,
common pleas’ findings of facts in the present appeal, and the Department Panel’s notes, which
indicate “permanent denial.” (May 29, 2018 Hearing, Department’s Ex. C-1. See also FOF ¶ 1;
Perrotta I, R.R. at 25a.) Accordingly, we proceed with the understanding that the Denial
permanently denied Licensee’s operating privileges.
13
We recognize that professional licenses implicate the “inalienable right to engage in
lawful employment,” while driver’s licenses are a privilege. King v. Bureau of Prof’l &
Occupational Affairs, State Bd. of Barber Examiners, 195 A.3d 315, 324 (Pa. Cmwlth. 2018)
(citation omitted).
13
principles of fairness to ensure that individuals are provided with “clear and
unequivocal warning” about what actions expose them to liability and what the
corresponding penalties may result. Id. (emphasis omitted) (quoting Richards v.
Pa. Bd. of Prob. & Parole, 20 A.3d 596, 600 (Pa. Cmwlth. 2011)) (citing
Sondergaard v. Dep’t of Transp., Bureau of Driver Licensing, 65 A.3d 994 (Pa.
Cmwlth. 2013)).
Further, in reviewing occupational license denials, this Court has been
cognizant of mitigating circumstances that weigh against the imposition of such a
serious penalty as license revocation. We explained this in Benford v. State Real
Estate Commission, where a real estate sales’ license was indefinitely revoked for
the licensee’s violations of the Real Estate Brokers License Act of 1929,14
involving misrepresentation and bad faith in transactions. 300 A.2d 922, 923-24
(Pa. Cmwlth. 1973). There, the complaining party, a real estate broker, alleged
that the licensee, a salesperson, had willfully misrepresented himself as a broker
and negotiated an agreement of sale for property that was among complainant’s
accounts without the complainant’s knowledge. The State Real Estate
Commission (Commission) found the licensee had committed these violations and
revoked the license for an indefinite period. The licensee argued that the
Commission abused its discretion in the penalty it imposed.
This Court concluded that an indefinite revocation of a real estate sales
license was too severe of a penalty where “the evidence [was] not so gross as to
warrant a permanent deprivation of the license which is appellant’s source of
14
Act of May 1, 1929, P.L. 1216, as amended, 63 P.S. §§ 431-448. The Real Estate
Brokers License Act was repealed and replaced by the Real Estate Licensing and Registration
Act, Act of February 19, 1980, P.L. 15, as amended, 63 P.S. §§ 455.101–455.902.
14
livelihood.” Id. at 925 (emphasis added). Our determination was based, not “on
sympathy for a wrongdoer, but on certain factors that, while not excusing the
violation, do mitigate it.” Id. For instance, we noted that the complainant sought
to withdraw the complaint after learning information that caused him to believe the
licensee had not willfully misrepresented himself. We also acknowledged the
evidence showed that the licensee worked independently of the complainant when
negotiating sales, and this was done by mutual agreement. Id. While these
mitigating circumstances did not excuse the licensee’s actions, they indicated the
licensee had not willfully misrepresented his title. Id. at 926. Thus, although the
Commission might have been justified in suspending the licensee’s license, we
found that it abused its discretion by revoking it. Id.
We applied this analysis in a case involving the Bureau of Occupational
Affairs, State Board of Accountancy (Board) and a permanent revocation of a
licensee’s Certified Public Accounting (CPA) license. Ake v. Bureau of Prof’l &
Occupational Affairs, State Bd. of Accountancy, 974 A.2d 514, 522 (Pa. Cmwlth.
2009). In Ake, the Board permanently revoked the licensee’s CPA credentials
based upon the licensee’s conviction for the felony of a hate crime in Illinois. Id.
at 516-18. The licensee argued to this Court that the Board abused its discretion by
imposing the maximum penalty. We agreed, acknowledging that while the Board
had grounds to impose a sanction, it “abused its discretion by imposing the most
drastic available sanction.” Id. at 522. In part, we reasoned that a complete
revocation “should be a sanction reserved for the worst offenders,” like the
licensee in Goldberger v. State Board of Accountancy, 833 A.2d 815 (Pa. Cmwlth.
2003), who “prepare[d] an audit report that falsely inflated a company’s net
earnings.” Ake, 974 A.2d at 522. Pertinent to our decision in Ake was that the
15
licensee had presented mitigating evidence that his conviction in Illinois was an
isolated incident and remote in time from the licensee’s application to reactivate
his CPA license. Id. at 519-20. Further, looking to the language of the relevant
section of the CPA Law,15 this Court noted that the provision was intended as a
penalty for the “types of misconduct that are anathema to the accounting
profession,” of which the licensee’s convicted conduct was not. Id. at 520.
Finally, to the extent that rehabilitation was a relevant factor for the Board’s
consideration, this Court concluded that the licensee was rehabilitated after serving
the sentence for his conviction, complying with the terms of his parole, and
apologizing for his actions. Id. at 521. Given this, we vacated the Board’s order
revoking the licensee’s CPA license. Id. at 522.
d. Lifetime Revocations of Driver’s Licenses
This Court has also emphasized the serious nature of a lifetime revocation in
the context of commercial driver’s licenses (CDLs) under the Uniform
Commercial Driver’s License Act (CDL Act).16 In Sondergaard, the licensee
appealed a notice from the Department that he was permanently disqualified from
operating a commercial vehicle after his second conviction for DUI. The
licensee’s arguments on appeal related to the interpretation of Section 1611(c) of
the CDL Act, 75 Pa. C.S. § 1611(c), which requires the Department to disqualify
for life any person convicted of two or more violations of an offense relating to
DUI where the person was a commercial driver at the time the violation occurred.
Ultimately, while this Court found the statute unambiguous, and thus did not apply
15
Act of May 26, 1947, P.L. 318, as amended, 63 P.S. §§ 9.1-9.16b.
16
75 Pa. C.S. §§ 1601-1622.
16
the rule of lenity, we did find the lifetime disqualification to be penal in nature.
Although acknowledging that “operating a motor vehicle is a privilege, not a
right,” we also noted how the lifetime disqualification under Section 1611(c) had
ramifications on a commercial driver’s ability to work. Sondergaard, 65 A.3d at
997. Specifically, a lifetime disqualification meant that commercial drivers “do
not lose the privilege to operate a motor vehicle; instead [they] lose the right to
practice their chosen profession,” and licenses to practice professions are protected
property interests. Id. (citing Alexander v. Dep’t of Transp., Bureau of Driver
Licensing, 880 A.2d 552, 561 (Pa. 2005); Johnson v. Allegheny Intermediate Unit,
59 A.3d 10, 20-21 (Pa. Cmwlth. 2012)). “The severity of this sanction transforms
what is a remedial law in the context of a one[-]year disqualification[] into a penal
law,” we explained. Id.
Our Supreme Court reviewed a similar provision, Section 1611(e) of the
CDL Act, 75 Pa. C.S. § 1611(e), to determine if it violated a licensee’s substantive
due process rights or constituted cruel and unusual punishment. Shoul v. Dep’t of
Transp., Bureau of Driver Licensing, 173 A.3d 669 (Pa. 2017). Section 1611(e) of
the Vehicle Code imposes a lifetime disqualification from driving a commercial
vehicle after a commercial driver is convicted of using a motor vehicle in the
commission of any felony involving controlled substances. 75 Pa. C.S. § 1611(e).
The Supreme Court ultimately concluded that Section 1611(e) did not violate the
licensee’s substantive due process because it served a legitimate government
purpose. Shoul, 173 A.3d at 677. The Supreme Court nonetheless found that
Section 1611(e) was not rationally related to protecting highway safety. Id. at 680.
Specifically, the Supreme Court determined that “Section 1611(e)’s imposition of a
17
lifetime disqualification undermines its rational relationship to promoting highway
safety.” Id. at 681 (emphasis in original). The Supreme Court explained
Section 1611(e) stands out as the sole provision imposing a lifetime
disqualification from holding a CDL that may never be lifted, while
holders of CDLs who commit traffic violations, drive under the
influence of alcohol and/or drugs, or even cause negligent homicides
– all plainly more dangerous, injurious, or fatal to motorists – are
subject to significantly shorter-term disqualifications.
Id. at 680. Further, even repeat offenders under other subsections of Section 1611
could seek exceptions from or reductions of possible lifetime disqualifications. As
such, the Supreme Court reasoned that a lifetime penalty under Section 1611(e)
“fail[ed] to account for persons’ inherent potential for rehabilitation,” which made
that penalty “unreasonable” or “unduly oppressive.” Id. at 681.17 Because Section
1611(e) did not account for the potential for rehabilitation, the corresponding
penalty of a lifetime disqualification undermined Section 1611(e)’s relationship to
highway safety. To that end, the Supreme Court further explained:
Section 1611(e) operates on a principle that one’s use of a motor
vehicle to deliver a controlled substance not only poses such a risk to
highway safety as to justify the disqualification of [the] right to hold a
CDL, but also an irrefutable legislative determination that he will
always pose such a risk to highway safety as to justify the same.
17
We note that, while Section 1611(c) and (d) specifically provide for the consideration
of mitigating circumstances prior to a lifetime disqualification in limited circumstances, Section
1611(e) does not. Section 1611(c) and (d) provide that where a person is convicted of two or
more enumerated offenses the Department shall disqualify that person for life, but nonetheless
“may issue regulations establishing guidelines . . . under which [that] disqualification for life . . .
may be reduced to a period of not less than ten years.” 75 Pa. C.S. § 1611(c), (d). No specific
provision for mitigation exists with regard to Section 1611(e), the provision at issue in Shoul, nor
did the Supreme Court consider the mitigation provisions in its analysis of Section 1611(e).
Section 1611(e), like Section 1503(a)(8), does not expressly provide for consideration of
mitigating circumstances prior to imposing the penalty.
18
Id. (emphasis omitted).
e. Legal Principles for Permanent License Denial
From these cases, a legal framework emerges. First, a driver’s license is a
privilege and not a right. Sondergaard, 65 A.3d at 997. Nonetheless, a permanent
revocation or denial of a license is the most severe sanction a licensing agency can
issue. As this Court has acknowledged, a licensing body can abuse its discretion
by imposing the most drastic penalty available for a violation of licensing laws and
regulations. Ake, 974 A.2d at 522. When determining the appropriateness of a
sanction, mitigating factors should be considered. Benford, 300 A.2d at 925.
Mitigating factors may include the licensee’s rehabilitation and remoteness in time
from the violations in question. Ake, 974 A.2d at 520. Further, the nature of the
conduct underlying the violations in question must be considered in relation to the
purpose of the lifetime ban and the conduct it seeks to deter. Shoul, 173 A.3d at
680-81.
f. The Department’s Permanent Denial of Licensee
We apply these legal principles to this case in which the Department has
imposed the most drastic sanction available: permanent denial of a driver’s
license. The Department’s primary argument focuses on Section 1503(a)(8) and its
language requiring a denial for repeated Chapter 15 violations. The Department
reasons that because Licensee had two Chapter 15 violations, he repeatedly
violated Chapter 15 and should be permanently denied. As such, the Department
appears to assert that Section 1503(a)(8) is not ambiguous. However, Section
1503(a)(8) does not give “clear unequivocal warning” that two repeated violations
19
may result in a lifetime ban. McGrath, 146 A.3d at 316; see also Section 1928 of
the Statutory Construction Act of 1972, 1 Pa. C.S. § 1928 (requiring that penal
provisions be construed strictly). Given this, we find Section 1503(a)(8) to be
ambiguous and penal and apply the rule of lenity to strictly construe Section
1503(a)(8) in our analysis of whether the Department met its burden before
common pleas to justify the Denial.
The Department provides little justification beyond vague reference to
public safety and security for why a lifetime ban is appropriate in Licensee’s case
other than the existence of two violations. Based on the principles above, that
alone is not sufficient to justify a lifetime ban. In reviewing a permanent denial,
we look, not at just the quantity of the violations, but also at the type of violation
and any mitigating circumstances. That is what common pleas did here. Given the
severity of the sanction, common pleas, during its de novo review of the
Department’s action, properly considered the mitigating evidence that the
Department should have examined in the first instance. Common pleas then
concluded that, as a matter of law, the Department did not meet its burden of
showing Licensee’s act of obtaining two false licenses years ago justified denying
him a license for the rest of his life. See Ake, 974 A.2d at 520; Benford, 300 A.2d
at 925. Similar to this Court’s analysis in Ake, common pleas found that
Licensee’s violations for the false licenses were remote in time, that Licensee had
served his sentence, and that Licensee had shown rehabilitation through
completing eight years of parole without violations. Further, as we did in Benford,
common pleas acknowledged testimony at the hearing as to Licensee’s
circumstances, which did not excuse his violations but mitigated them. 300 A.2d
at 925-26. Specifically, common pleas found that Licensee had not used the false
20
licenses to obtain welfare benefits or credit cards, but procured them as a means to
continue working to support his family. While Licensee’s violations for the false
licenses likely justified his suspensions, given the mitigating circumstances, they
did not justify a lifetime ban. Id. at 926.
As in Ake, we consider the intent underlying the penalty for these false
licenses. There, we concluded that the penalty was intended for the “types of
misconduct that are anathema to the accounting profession.” Ake, 974 A.2d at 520.
Here, the Department contends that individuals who obtain false licenses pose a
risk to national security, public safety of fellow drivers, and the integrity of the
licensing system on the whole. Individuals who have had more than one false
license “should not be on the road,” in the Department’s view. (Department’s Br.
at 14.) Because Licensee has obtained two false licenses, the Department asserts
he poses a risk to safety and should be permanently denied. We find the
Department’s argument to be unsustainable, as it is reminiscent of the arguments
rejected by the Supreme Court in Shoul. As in Shoul, the Department’s argument
here operates on the principle that obtaining more than one false driver’s license
“not only poses such a risk to highway safety as to justify the disqualification of
[Licensee’s] right to hold [a license], but also an irrefutable . . . determination that
[Licensee] will always pose such a risk to highway safety as to justify the same.”
173 A.3d at 681. The Department’s argument here, as in Shoul, “fails to account
for [Licensee’s] inherent potential for rehabilitation,” id., and is contrary to the
facts as found by common pleas.
Common pleas found that Licensee completed alcohol and drug
rehabilitation, has not consumed drugs or alcohol since his incarceration, and
served eight years of parole without violating its terms or conditions. (FOF ¶ 50.)
21
Additionally, Licensee’s last Vehicle Code violation occurred in 2006. (Id. ¶ 38.)
Common pleas also concluded that Licensee “demonstrated his willingness to
comply with the restrictions placed on his license.” (Rule 1925(a) Op. at 26.)
Moreover, given common pleas’ findings regarding Licensee’s rehabilitation, the
Department’s goal of using Section 1503(a)(8) to deter Licensee from obtaining
false licenses in the future is not served.
Finally, as common pleas stated in this case, and the Supreme Court did in
Shoul, we find it important that other provisions of the Vehicle Code provide the
opportunity for reapplication and restoration of an individual’s license after
convictions for offenses that also pose a serious threat to public safety. Under
Section 1554 of the Vehicle Code, an individual may be eligible for a probationary
license after serving the requisite term of suspension or revocation for up to 22 of
any of the offenses enumerated in Sections 1532, 1539, and 1543 of the Vehicle
Code, which include aggravated assault by vehicle while DUI, accidents involving
personal injury, and reckless driving. These offenses pose a significant and direct
threat to public safety, yet the Vehicle Code allows for individuals with such
violations to demonstrate rehabilitation and apply for a probationary license. The
action of obtaining a false license, while unlawful, does not invariably pose the
same type of threat as the above offenses.
In summary, Licensee admits he violated the law when he obtained the two
false licenses. Licensee’s unlawful actions for the false licenses are remote in
time, and the Department has not shown that Licensee currently presents a threat to
the integrity of the licensing system or public safety, or that his conduct of
obtaining two false licenses otherwise requires such a severe sanction. We do not
minimize the severity of Licensee’s unlawful conduct. Rather, we agree with
22
common pleas that the Department has not met its burden of proving that the
conduct in question warrants the lifetime ban issued by the Department. In
essence, common pleas concluded, as a matter of law, that these mitigating factors
weighed against the imposition of the most serious penalty the Department could
impose. As discussed, there is substantial evidence to support the facts upon which
this conclusion is based. Therefore, common pleas did not err in granting
Licensee’s appeal because the Department did not meet its burden to permanently
deny Licensee’s operating privileges under Section 1503(a)(8).
g. Remedy
In its Order granting Licensee’s appeal, as a remedy common pleas ordered
the Department to remove from Licensee’s driving status the designation of
suspended, revoked, or expired, display Licensee’s driving status as restored,
accept Licensee’s applications for an ignition interlock and learner’s permit, and
grant the license upon payment of costs. However, common pleas was limited to
ordering the Department to perform its “ministerial duty”; it was without authority
to order the Department to “exercise its judgment or discretion in a particular
way.” Bright v. Pa. Bd. of Prob. & Parole, 831 A.2d 775, 777 (Pa. Cmwlth.
2003). Here, Department has a ministerial duty to process Licensee’s applications,
but cannot be compelled to grant the license. Therefore, we order the Department
to process Licensee’s applications in accordance with its regulations and
procedures in light of our decision that the Department has not met its burden
under Section 1503(a)(8).18
18
We do not address the Department’s argument that common pleas erred in finding that
the Department denied Licensee due process. As noted in our opinion reinstating the automatic
(Footnote continued on next page…)
23
III. Conclusion
Common pleas did not err as a matter of law when it granted Licensee’s
appeal of the Denial; thus, we affirm in part on those grounds and do not address
whether the Department violated Licensee’s due process rights. The Department
did not meet its burden to permanently deny Licensee a driver’s license pursuant to
Section 1503(a)(8). However, common pleas’ Order, to the extent it directed the
Department to grant a license to Licensee, is vacated. Instead, the Department is
ordered to process Licensee’s applications and documentation he submitted in
compliance with the Restoration Letters according to the Department’s governing
regulations and procedures in light of the foregoing opinion.
_____________________________________
RENÉE COHN JUBELIRER, Judge
_____________________________
(continued…)
supersedeas, because “the common pleas court heard the matter de novo and made its own
findings of fact and conclusions of law, it would appear probable that the de novo hearing cured
any procedural due process defect occurring at the administrative level.” Perrotta II, slip op. at
4; see also Dep’t of Transp., Bureau of Traffic Safety v. Quinlan, 408 A.2d 173, 175 (Pa.
Cmwlth. 1979). Nonetheless, the lack of written procedure governing Department hearings
under Section 1503(a)(8) and the Department’s position that these hearings are not subject to its
administrative practice regulations is troubling, particularly given the potential of a lifetime ban
on operating privileges.
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Anthony Perrotta :
:
v. : No. 1122 C.D. 2018
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
ORDER
NOW, August 14, 2019, the Order of the Court of Common Pleas of
Delaware County (common pleas) is AFFIRMED to the extent that it granted
Mark Anthony Perrotta’s (Licensee) appeal because the Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing
(Department) did not meet its burden. Common pleas’ Order directing the
Department to grant Licensee a license is otherwise VACATED. The Department
shall process Licensee’s applications for license restoration in compliance with its
governing regulations and procedures in light of the foregoing opinion that the
Department has not met its burden to proceed under Section 1503(a)(8) of the
Vehicle Code, 75 Pa. C.S. § 1503(a)(8).
_____________________________________
RENÉE COHN JUBELIRER, Judge