Mishler v. Commonwealth

Opinion by

Judge Palladino,

David J. Mishler (Petitioner) appeals from the order of the Court of Common Pleas of Lancaster County (trial court) which dismissed Petitioners appeal from the revocation of his vehicle operating privileges for a period of nine years by the Department of Transportation (DOT). This revocation was imposed in accordance with Sections 1532(a)(1), 1542(b)(5) and 1542(e) of The Vehicle Code (Code).¹ We affirm.

Petitioner pled guilty on November 21, 1983, to two counts of Theft by Unlawful Taking² and two counts of Receiving Stolen Property.³ All of these offenses to which the Defendant pled guilty were felonies, and Petitioner was sentenced pursuant to a negotiated plea agreement. The Clerk of Courts of Lancaster County forwarded to DOT a certification of conviction, pursuant to Section 6323 of the Code,⁴ upon which the words “Motorcycle Involved” were typed. As a result, DOT notified Petitioner that his vehicle operating privileges were being revoked for consecutive periods of one, one, five and two years pursuant to Sections 1532(a)(1), 1542(b)(5) and 1542(e) of the Code. Petitioner appealed the revocation to the trial court. The trial court held a de novo hearing and, after presentation of evidence, upheld the revocations at issue in this appeal.

On appeal to tills Cmm, )i*«¡¡:¡¡'ío(íoi. argue:’ ümí ¡Pe Clerk of Courts erred in foiwanlmg the cerfilimífcin *jf

conviction forms to DOT because there r uo a em-h reflecting that, during the criminal proceeding, the court made a specific determination that Petitioner had been convicted of a felony in the commission of vv kich a motor vehicle was essentially involved, as v p AAA by Sections 1532 and 1542 of the Code. As s ie-4 ¡1 ¡his error, Petitioner contends that ins license rAy odd 5-'-stored to him.

In contrast, DOT asserts <lifts ¡ho »»» , was proper because 5 received, hoe' kV-- ffe'V ('! 1 ' v.r'. ■« Lancaster íhnmrt foi m vrtirt ;a t..-.p ortAk rt-A-rt, JRepori A ¡he kkerk s'D .‘onu’ rhertug Pie re,* v iloii < . .■ • ¡pifio! (if any rtiArtAw oí ffv> •> h« *• ■

« ,« '■ i-o <v nov ;eikeii art ir kv: com-oiko:.,,,

oJ ip. white in. which a «mnuar a írtele ows uwA. DOT argues that the mandate c5 beckem 1552 rub ¡150, of the Code is met becau.se the ¡aw presumes ¡fe; ? public officials actions are taken pursuant to bu parpar authority, and thus, it can be presumed íbrt the At l court made the “essentially involved” determination as evidenced by the Clerk of Courts forwarding the aforementioned form.

Our scope of review of a license revocation includes determining whether the trial court has committed an error of law. In Re: Appeal of Finkelstein, 73 Pa. Commonwealth Ct. 417, 458 A.2d 326 (1983).

In Rosenblatt v. Pennsylvania Turnpike Commission, 398 Pa. III, 157 A.2d 182 (1959), the Supreme Court rejected Appellants argument that a plan of the Turnpike Commission was never formally adopted by the Commission since the approval was signed only by its secretary and treasurer. The argument that this signature only evidenced the secretary and treasurers approval was held to be without merit, because in the absence of proof to the contrary, the law presumes that a public officials actions were pursuant to proper authority and that the steps necessary to give validity to his official acts were duly taken.

The burden, then fells on Appellant to prove that when the clerk of courts forwarded to DOT the aforementioned form, the court had not determined that a vehicle was essentially involved. To this end, Appellant asserts that the record forwarded to DOT does not reflect that the criminal court judge made the essentially involved determination. Rather, he asserts that the form sent to DOT merely reflects the clerk of courts’ determination.⁵ Here, however, we are met with the fact that the trial judge in the suspension appeal was the same judge who presided over the criminal proceedings. As such, at the de novo hearing the trial judge took judicial notice of fects within his actual knowledge. Specifically, during the hearing at which Appellant pled guilty, the trial judge recounted testimony from police officers that Appellant was involved in a substantial motorcycle theft operation. The trial court rejected the argument that his clerk of courts erroneously determined a vehicle was essentially involved. The trial judge held “without any doubt[,] that a motor vehicle, namely motorcycles, were essentially involved in these offenses to which Petitioner, David J. Mishler, pled guilty.”⁶ This finding by the trial court obviates reliance on the mere presumption that the clerk of courts acted pursuant to the proper authority.

Given the unique factual situation present in this case, namely, that the same judge presided at both the criminal trial and the appeal from DOT’s suspension, we conclude that the statutory requirement was met. Accordingly, we affirm.

Order

And Now, December 29, 1986, the order of the Court of Common Pleas of Lancaster County, No. 840743, dated June 20, 1984, is hereby affirmed.

1 75 Pa. C. S. §1532(a)(1) states in pertinent part:

§1532. Revocation or suspension of operating privilege (a) Revocation.—The department shall revoke the operating privilege of any driver for one year upon receiving a certified record of the drivers conviction of any of the following offenses:

(1) Any felony in the commission of which a court determines that a vehicle was essentially involved.

75 Pa. C. S. §1542(a) states in pertinent part:

§1542. Revocation of habitual offender’s license (a) General rule.—The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A “habitual offender” shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed after the effective date of this title and within any period of five years thereafter.

75 Pa. C. S. § 1542(b)(5) states in pertinent part:

(b) Offenses enumerated.—Three convictions arising from separate acts of any one or more of the following offenses committed either singularly or in combination by any person shall result in such person being designated as a habitual offender:

(5) Any felony in the commission of which a court determines that a vehicle was essentially involved.

75 Pa. C. S. §1542(e) states:

(e) Additional offenses.—Any additional offense committed within a period of five years shall result in a revocation for an additional period of two years.

2 18 Pa. C. S. §3921(a).

3 18 Pa. C. S. §3925

Petitioner also received a notice of revocation as a result of his conviction of violating Section 903 of The Crimes Code, (Conspiracy), 18 Pa. C. S. §903. However, the trial court sustained Petitioners appeal to this revocation, and it is not at issue in the instant appeal.

4 75 Pa. C. S. §6323 states in pertinent part:

§6323. Reports by courts

Subject to any inconsistent procedures and standards relating to reports and transmission of funds prescribed pursuant to Title 42 (relating to judiciary nob judicial p;mdure):

(2) A record oF the jodgwieiU :;k;h abo on Tuvu-Ah is the department upon com/iriioii or aetjuifiai of a pewon of a felony in the commission c,F which the judge dciiv.niooo that a motor vehicle was essentially HivnJIved.

5 This Court recently addressed the same issue in Department of Transportation v. Dauer, 96 Pa. Commonwealth Ct. 541, 507 A.2d 1299 (1986), but Dauer is factually distinguishable because, here, the trial judge for the suspension appeal was the same judge who presided over the criminal proceedings.

6 Commonwealth of Pennsylvania v. David J. Mishler, No. 840743 (C.P. Lancaster County, filed June 21, 1984).