B. Washington v. Bureau of Driver Licensing ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Barton Washington :
:
v. : No. 581 C.D. 2022
: Argued: June 7, 2023
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION
BY JUDGE WALLACE FILED: August 9, 2023
The Commonwealth of Pennsylvania, Department of Transportation, Bureau
of Driver Licensing (DOT), appeals from the order of the Court of Common Pleas
of Philadelphia County (trial court) dated June 3, 2022, sustaining the appeal of
Barton Washington (Licensee) from DOT’s one-year suspension of his operating
privilege under Section 1532(b)(3) of the Vehicle Code,1 75 Pa.C.S. § 1532(b)(3).
1
75 Pa.C.S. §§ 101-9805.
DOT imposed its license suspension following Licensee’s conviction for conspiracy2
to violate Section 3733 of the Vehicle Code, 75 Pa.C.S. § 3733, fleeing or attempting
to elude a police officer (fleeing or eluding). After review, we affirm the trial court’s
order.
BACKGROUND
The Philadelphia Police charged Licensee with numerous criminal offenses
including, in relevant part, fleeing or eluding and conspiracy to commit fleeing or
eluding, following an incident that occurred on March 7, 2019, in which Licensee
was the passenger in a vehicle. Reproduced Record (R.R.) at 73a-74a. To resolve
his criminal case, Licensee pled guilty to the conspiracy charge on October 18, 2021,
pursuant to a plea agreement he negotiated with the Philadelphia District Attorney’s
Office (DAO). Id. The DAO dropped, by nolle pros, the remaining charges,
including the substantive charge of fleeing or eluding. Id.
Following Licensee’s conviction, trial court’s clerk of courts submitted a
DL-21 report3 regarding Licensee’s conviction to DOT. R.R. at 29a. The DL-21
report informed DOT that Licensee was convicted of violating Section 3733 of the
Vehicle Code, fleeing or eluding, but indicated in a separate box that the charge was
“CONSPIRACY – FLEEING OR ATTEMPTING TO ELUDE OFFICER.” Id. By
notice mailed October 27, 2021, DOT then warned Licensee his driving privilege
would be suspended for one year, effective October 27, 2021, due to his “conviction
2
See 18 Pa.C.S. § 903.
3
The DL-21 is a report sent by the clerk of courts of a Court of Common Pleas to DOT showing
a defendant’s conviction or acquittal of any Vehicle Code offense in accordance with Section 6323
of the Vehicle Code, which requires the “clerk of any court of this Commonwealth, within ten days
after final judgment of conviction or acquittal or other disposition of charges under any provisions
of this title . . . send to [DOT] a record of the judgment[.]” 75 Pa.C.S. § 6323.
2
of violating Section 3733 of the Vehicle Code FLEEING POLICE OFFICER on
03/07/2019.” R.R. at 6a. Licensee appealed to the trial court.
The trial court held a de novo hearing on June 3, 2022. R.R. at 20a. By order
dated June 3, 2022, the trial court sustained Licensee’s appeal and rescinded the
suspension. In its Pa. R.A.P. 1925(a) Opinion (1925(a) Opinion), the trial court
relied on the doctrine of collateral estoppel to conclude that because Licensee had
entered into a negotiated guilty plea with the DAO in the criminal matter, DOT was
collaterally estopped from seeking the license suspension. Specifically, the trial
court explained:
The instant matter satisfies the four (4) requisite elements for the
application of the doctrine of collateral estoppel. First, the issue in the
instant matter is identical to the one presented in the prior action,
namely whether [Licensee] was guilty of violating Section 3733.
Second, the prior action resulted in a final judgment, namely the charge
grounded in Section 3733 was nolle prossed. Third, the party in the
prior action, the Commonwealth of Pennsylvania, and the party in the
instant matter, the Commonwealth of Pennsylvania Department of
Transportation, Bureau of Driver Licensing, are in privity with each
other as the latter is a department of the former. Fourth, the
Commonwealth of Pennsylvania had a full and fair opportunity to
litigate the issue grounded in Section 3733 in the prior action.
Accordingly, the doctrine of collateral estoppel is applicable.
1925(a) Opinion at 3-4 (internal citations and footnotes omitted). DOT now appeals
to this Court.
On appeal, DOT argues the trial court erred because DOT properly imposed
Licensee’s operating privilege suspension in accordance with Section 1532(b)(3) of
the Vehicle Code following Licensee’s conviction for conspiracy to commit fleeing
or eluding. DOT’s Br. at 10. DOT also argues the trial court erred as a matter of
law in holding that DOT was collaterally estopped from imposing the suspension of
Licensee’s operating privilege. Id. at 4. In response, Licensee contends DOT’s
3
argument, that conspiracy is equivalent to fleeing or eluding, was not raised before
the trial court and is, therefore, waived and DOT lacks authority to suspend a license
based on a conspiracy conviction. Licensee’s Br. at 7-11.
ANALYSIS
In reviewing a trial court’s decision to sustain or deny a license suspension
appeal, we are limited to “determining whether the trial court’s findings are
supported by [substantial] evidence, whether errors of law have been committed, or
whether the trial court’s determinations demonstrate a manifest abuse of discretion.”
McCloskey v. Dep’t of Transp., Bureau of Driver Licensing, 722 A.2d 1159, 1161
(Pa. Cmwlth. 1999). This Court may affirm a trial court’s order on any basis
appearing in the record. Feldman v. Lafayette Green Condo. Ass’n, 806 A.2d 497,
502 n.3 (Pa. Cmwlth. 2002).
Doctrine of Collateral Estoppel
We begin by addressing DOT’s assertion that the trial court erred as a matter
of law in concluding DOT was collaterally estopped from imposing the suspension
of Licensee’s operating privilege. In this regard, we agree with DOT.
Collateral estoppel effectively bars a subsequent cause of action if the
following four elements exist:
(1) the issue decided in the prior adjudication was identical with the
present action; (2) there was a final judgment on the merits; (3) the party
against whom the plea is asserted was in privity with the party to the
prior adjudication; and (4) the party against whom it is asserted has had
a full and fair opportunity to litigate the issue in question in a prior
action.
Glasgow v. Dep’t of Transp., 529 A.2d 576, 581 (Pa. Cmwlth. 1987). This Court
has previously held that “the outcome of [a] criminal proceeding cannot collaterally
estop [DOT] from suspending a motorist’s license in civil proceedings.” Dep’t of
4
Transp. v. Crawford, 550 A.2d 1053, 1054-55 (Pa. Cmwlth. 1988). In Crawford,
we considered whether DOT was estopped from establishing, in a civil license
suspension proceeding, that a licensee refused to submit to chemical testing where a
trial court determined, with respect to the criminal charges, that the licensee did not
refuse to submit to a breathalyzer. Id. at 1054. Our Court addressed this issue as
follows:
Clearly, the third and fourth elements of the “collateral estoppel” test
are not present here. Firstly, we do not believe [DOT] and the District
Attorney stand in sufficient relationship so that [DOT] could be
considered the same party as, or in privity with the District Attorney.
Secondly, as we have already stated, [DOT’s] civil suspension
proceeding is separate and distinct from the criminal proceeding
initiated by the . . . District Attorney.
Id. at 1054-55.
Thus, consistent with our prior decision, we conclude the trial court erred in
determining DOT was collaterally estopped from pursuing the license suspension.
The DAO and DOT are not the same party nor are they in privity, and the criminal
and civil proceedings are distinct and separate matters. DOT did not participate in
the criminal proceeding, which was handled by the DAO, and thus did not have a
full and fair opportunity to litigate the issue in question. However, this does not end
our inquiry, as we must consider whether, despite this error, the trial court properly
sustained Licensee’s suspension appeal.
Operating Privilege Suspension
Before we address the merits of DOT’s argument that it properly imposed an
operating privilege suspension because Licensee’s conviction for conspiracy is
“equivalent” to a conviction for the substantive offense of fleeing or eluding, we
must address whether DOT has waived this issue.
5
Rule 302(a) of the Pennsylvania Rules of Appellate Procedure provides
“[i]ssues not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa. R.A.P. 302(a). However, in Wert v. Department of
Transportation, Bureau of Driver Licensing, 821 A.2d 182, 186 n.9 (Pa. Cmwlth.
2003), we noted that while the “issue must be preserved, . . . this does not mean
every argument is written in stone at the initial stage of litigation.” Id. (citation
omitted). “We do not believe that Pa. R.A.P. 302(a) requires a litigant to make
identical arguments at each stage of his case.” Id. Further, this Court has held that
an argument is properly preserved for appeal if a party includes the argument in its
Pa. R.A.P. 1925(b) statement. Venafro v. Dep’t of Transp., Bureau of Driver
Licensing, 796 A.2d 384, 388 n.4 (Pa. Cmwlth. 2002).
A review of the record reveals that throughout these proceedings, DOT has
maintained that it properly imposed the one-year operating privilege suspension
required by Section 1532(b)(3) of the Vehicle Code due to Licensee’s conviction.
DOT acknowledged Licensee’s conviction for conspiracy in its Pa. R.A.P. 1925(b)
Statement of Errors Complained of on Appeal, indicating:
[DOT] believes the [t]rial [c]ourt sustained the appeal because the
evidence shows [Licensee] was convicted of conspiracy to flee or elude
an officer. [DOT] believes the court that convicted [Licensee] reported
a conviction for violation Section 3733 to [DOT] in the way it did
because that court wanted a suspension to be imposed on [Licensee]
under 18 Pa.C.S. § 905 (relating to grading of criminal attempt,
solicitation and conspiracy) and 75 Pa.C.S. § 1532(b)(3).
R.R. at 61a-62a. DOT acknowledges Licensee’s conviction for conspiracy and sets
forth its position that Licensee is still subject to Section 1532(b)(3)’s operating
privilege suspension. While DOT does not use the word “equivalent” as it does in
its brief to this Court, it has maintained its position that Licensee’s conviction for
6
conspiracy to commit fleeing or eluding is a sufficient basis on which to apply
Section 1532(b)(3)’s operating privilege suspension. Accordingly, we conclude
DOT’s issue was sufficiently preserved for appeal. Thus, we turn to the merits of
this issue.
Section 1532(b)(3) of the Vehicle Code mandates a 12-month operating
privilege suspension upon receipt of a certified record of any driver’s conviction of
[S]ection 3733 (relating to fleeing or attempting to elude police officer)
or a substantially similar offense reported to [DOT] under Article III of
[S]ection 1581 (relating to Driver’s License Compact), or an
adjudication of delinquency based on [S]ection 3733. [DOT] shall
suspend the operating privilege of any driver for six months upon
receiving a certified record of a consent decree granted under 42
Pa.C.S. Ch. 63 (relating to juvenile matters) based on Section 3733.
75 Pa.C.S. § 1532(b)(3). The Vehicle Code specifically defines a driver as a “person
who drives or is in actual physical control of a vehicle.” 75 Pa.C.S. § 102.
Section 3733 of the Vehicle Code defines fleeing or eluding as
[a]ny driver of a motor vehicle who willfully fails or refuses to bring
his vehicle to a stop, or who otherwise flees or attempts to elude a
pursuing police officer, when given a visual and audible signal to bring
the vehicle to a stop[.]
75 Pa.C.S. § 3733 (emphasis added). Meanwhile, the crime of conspiracy is
committed when a person conspires with
another person or persons to commit a crime if with the intent of
promoting or facilitating its commission he: (1) agrees with such other
person or persons that they or one or more of them will engage in
conduct which constitutes such crime or an attempt or solicitation to
commit such crime; or (2) agrees to aid such other person or persons in
the planning or commission of such crime or of an attempt or
solicitation to commit such crime.
7
18 Pa.C.S. § 903.
In interpreting statutes, we are tasked with ascertaining and effectuating the
intent of the General Assembly. 1 Pa.C.S. § 1921(a). The Statutory Construction
Act of 1972 directs that “[w]hen the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.” 1 Pa.C.S. § 1921(c). Moreover, words and phrases may be added in
construing a statute only when the added words are necessary to a proper
interpretation, and so long as they do not, in any way, affect the statute’s scope and
operation. 1 Pa.C.S. § 1923(c).
The plain language of Section 1532(b)(3) of the Vehicle Code clearly and
unambiguously mandates that a driver convicted of fleeing or eluding is subject to a
license suspension. See 75 Pa.C.S. § 1532(b)(3). Here, the record reveals Licensee
was neither the driver nor convicted of fleeing or eluding. DOT asks us to conclude
that Licensee’s conviction for conspiracy is “equivalent” to these statutory
requirements. However, the inclusion of inchoate offenses, including conspiracy,
modifies the plain language of the statute and expands its reach beyond what the
legislature explicitly included. See id. Section 1532(b)(3) of the Vehicle Code
makes no mention of convictions for conspiracy or “equivalent” offenses to fleeing
or eluding, and we will not expand its application to a passenger with a conspiracy
conviction. Moreover, our Pennsylvania Supreme Court has specifically indicated
that conspiracy to commit an offense and the completed substantive offense are
separate crimes with separate elements. Commonwealth v. Miller, 364 A.2d 886,
887 (Pa. 1976). Thus, contrary to DOT’s assertions, these are not “equivalent”
offenses.
8
Because the language is clear, we need not reach and analyze legislative
intent. However, it is worth noting that this result makes sense considering the
legislature’s goal in suspending operating privileges. In the criminal realm, a
conspirator may be found as criminally responsible as the co-conspirator in an
underlying crime for which he or she will be punished. Here, however, we are in
the civil realm where only a driver who drove or was in actual physical control of
the vehicle loses his license. It makes sense, for public safety, for only the driver
who flees or attempts to elude a police officer to lose his operating privilege.
Because Licensee was convicted of conspiracy, rather than fleeing or eluding, and
because he was a passenger in the vehicle rather than the driver, Section 1532(b)(3)’s
operating privilege suspension is not applicable.
CONCLUSION
While the trial court erred by concluding DOT was collaterally estopped from
pursuing a license suspension due to Licensee’s plea agreement with the DAO, it
nevertheless properly sustained Licensee’s license suspension appeal as Licensee is
not subject to Section 1532(b)(3)’s operating privilege suspension. Accordingly, we
affirm the trial court’s order.
______________________________
STACY WALLACE, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Barton Washington :
:
v. : No. 581 C.D. 2022
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
ORDER
AND NOW, this 9th day of August 2023, the order of the Court of Common
Pleas of Philadelphia County, dated June 3, 2022, is AFFIRMED for reasons
consistent with the foregoing Opinion.
______________________________
STACY WALLACE, Judge