Bureau of Driver Licensing v. R. Foltz, II

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
:
v. :
:
: No. 243 C.D. 2021
Royce Foltz, II : Submitted: February 4, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COVEY FILED: August 8, 2022
The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (DOT) appeals from the York County Common Pleas
Court’s (trial court) February 17, 2021 order denying Royce Foltz, II’s (Licensee)
appeal from his license suspension, reinstating his 12-month license suspension, and
directing DOT to apply 60 days of credit to the suspension.1 DOT presents two
issues for this Court’s review: (1) whether the trial court abused its discretion and
erred as a matter of law by crediting Licensee 60 days toward his suspension because
the trial court lacked authority to grant administrative credit; and (2) whether the
trial court erred as a matter of law by holding that Licensee was denied his due
process right to fundamental fairness when DOT imposed a 12-month suspension
for his Driving Under the Influence (DUI) conviction after Licensee had served a
60-day license suspension as part of his Accelerated Rehabilitative Disposition
1
Herein, DOT only appeals from the portion of the trial court’s order directing DOT to
apply 60 days of credit to Licensee’s suspension.
(ARD) program, from which he was removed before completion thereof. After
review, this Court reverses the trial court’s order in part.
On February 12, 2017, Licensee was arrested for DUI. On June 26,
2018, Licensee was accepted into the ARD program. On July 10, 2018, DOT mailed
Licensee an Official Notice of Suspension of Driving Privilege (Notice of
Suspension) for 60 days, effective June 26, 2018, in accordance with Section
3807(d)(3) of the Vehicle Code, 75 Pa.C.S. § 3807(d)(3), as a condition of
participation in the ARD program. Reproduced Record (R.R.) at 48a (July 10, 2018
Notice of Suspension).2 Licensee’s driving privilege was restored on August 25,
2018. Thereafter, Licensee was removed from the ARD program for failing to
complete the required community service hours. See R.R. at 28a (Notes of
Testimony, Jan. 27, 2021 at 8).
On January 30, 2020, Licensee was convicted under Section 3802(c) of
the Vehicle Code, 75 Pa.C.S. § 3802(c) (DUI Highest Rate of Alcohol). On June
11, 2020, the York County Clerk of Courts submitted a certification of Licensee’s
DUI conviction to DOT. On June 19, 2020, DOT mailed Licensee a Notice of
Suspension for one year, effective July 24, 2020, in accordance with Section 3804(e)
of the Vehicle Code, 75 Pa.C.S. § 3804(e). See R.R. at 41a (June 19, 2020 Notice
of Suspension).3
On July 17, 2020, Licensee appealed from the Notice of Suspension to
the trial court. After several continuances, the trial court held a hearing on January
27, 2021. At the conclusion of the hearing, the trial court dismissed Licensee’s
2
The July 10, 2018 Notice of Suspension specified: “Your driving privilege is
SUSPENDED for a period of 60 DAY(S), effective 06/26/2018 at 12:01 a.m. as a result of your
acceptance into the YORK COUNTY . . . ARD[] Program.” R.R. at 48a (emphasis added).
3
The June 19, 2020 Notice of Suspension specified: “As a result of your 01/30/2020
conviction of violating Section 3802[(c)] of the Vehicle Code . . . [y]our driving privilege is
SUSPENDED for a period of 1 YEAR(S) effective 07/24/2020 at 12:01 a.m.” R.R. at 41a
(emphasis added).
2
appeal, reinstated his 12-month license suspension, and directed that 60 days of
credit be applied to Licensee’s suspension. DOT orally moved for reconsideration
of the trial court’s order with respect to the 60-day credit. The trial court granted
DOT’s request for reconsideration and afforded the parties the opportunity to brief
their respective positions. On February 17, 2021, the trial court again denied
Licensee’s appeal, reinstated his 12-month license suspension, and directed DOT to
credit 60 days to Licensee’s suspension. DOT appealed to this Court.4 On March
9, 2021, the trial court ordered DOT to file a Concise Statement of Errors
Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure
(Rule) 1925(b) (Rule 1925(b) Statement). DOT timely filed its Rule 1925(b)
Statement. On March 16, 2021, the trial court issued its opinion pursuant to Rule
1925(a) (Rule 1925(a) Opinion).5
Background
The General Assembly codified the ARD program in which first time
DUI offenders who choose to follow specified conditions may avoid a DUI
conviction. In order to participate in the ARD program, the licensee must apply to
the Commonwealth’s attorney. The Commonwealth’s attorney has discretion to
recommend an eligible licensee for ARD. If approved, the licensee appears before
the common pleas court (Common Pleas Court), which decides whether to grant
ARD and if so, retains jurisdiction until the licensee’s completion of the ARD
process, whether successful or unsuccessful. If a licensee fails to successfully
4
“Our review is to determine whether the factual findings of the trial court are supported
by [substantial] evidence and whether the trial court committed an error of law or abused its
discretion.” Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 648 n.3 (Pa.
Cmwlth. 2018).
5
In its Rule 1925(a) Opinion the trial court stated: “The [trial c]ourt has adequately
addressed [DOT’s] alleged error in its [o]rder and [o]pinion docketed February 17, 2021.” Id.3
complete ARD, the Common Pleas Court directs the Commonwealth’s attorney to
proceed on the DUI charges. ARD is codified in Section 3807 of the Vehicle Code,
which provides in relevant part:
Accelerated Rehabilitative Disposition
(a) Eligibility.--
(1) . . . [A] [licensee] charged with a violation of [S]ection
3802 [of the Vehicle Code] (relating to [DUI] of alcohol
or controlled substance) may be considered by the attorney
for the Commonwealth for participation in an [ARD]
program in a county if the program includes the minimum
requirements contained in this section.
....
(b) Evaluation and treatment.--
(1) A [licensee] offered [ARD] for a violation of [S]ection
3802 [of the Vehicle Code] is, as a condition of
participation in the program, subject to the following
requirements in addition to any other conditions of
participation imposed by the [Common Pleas C]ourt:
(i) The [licensee] must attend and successfully
complete an alcohol highway safety school . . . .
(ii) Prior to receiving [ARD] . . . , the [licensee]
must be evaluated . . . to determine the extent of
the [licensee’s] involvement with alcohol or other
drug and to assist the [Common Pleas C]ourt in
determining what conditions of [ARD] would
benefit the [licensee] and the public. . . .
(iii) If the [licensee] is assessed under
subparagraph (ii) to be in need of treatment, the
[licensee] must participate and cooperate with a
licensed alcohol or drug addiction treatment
program. . . . A treatment program shall retain the
right to immediately discharge into the custody of
the probation officer an offender who fails to
comply with program rules and treatment
4
expectations or refuses to constructively engage in
the treatment process.
(iv) The [licensee] must remain subject to
[Common Pleas C]ourt supervision for at least
six months, but not more than 12 months.
....
(2) The [licensee] shall be subject to a full assessment for
alcohol and drug addiction if any of the following apply:
(i) The evaluation under paragraph (1)(ii) indicates
a likelihood that the [licensee] is addicted to
alcohol or other drugs.
(ii) The [licensee’s] blood alcohol content at the
time of the offense was at least 0.16%.
....
(c) Insurance.--
....
(d) Mandatory suspension of operating privileges.--As
a condition of participation in an [ARD] program, the
[Common Pleas C]ourt shall order the [licensee’s]
license suspended as follows:
(1) There shall be no license suspension if the [licensee’s]
blood alcohol concentration at the time of testing was less
than 0.10%.
(2) For 30 days if the [licensee’s] blood alcohol
concentration at the time of testing was at least 0.10% but
less than 0.16%.
(3) For 60 days if:
(i) the [licensee’s] blood alcohol concentration
at the time of testing was 0.16% or higher;
(ii) the [licensee’s] blood alcohol concentration is
not known;
(iii) an accident which resulted in bodily injury or
in damage to a vehicle or other property occurred
5
in connection with the events surrounding the
current offense; or
(iv) the [licensee] was charged pursuant to
[S]ection 3802(d) [of the Vehicle Code (relating to
controlled substances)].
(4) For 90 days if the [licensee] was a minor at the time of
the offense.
(e) Failure to comply.--
(1) A [licensee] who fails to complete any of the
conditions of participation contained in this section
shall be deemed to have unsuccessfully participated in
an [ARD] program, and the criminal record underlying
participation in the program shall not be expunged.
(2) The [Common Pleas C]ourt shall direct the
attorney for the Commonwealth to proceed on the
charges as prescribed in the Rules of Criminal Procedure
if the [licensee]:
(i) fails to meet any of the requirements of this
section;
(ii) is charged with or commits an offense under
[the Crimes Code, 18 Pa.C.S. §§ 101-9546]; or
(iii) violates any other condition imposed by the
[Common Pleas C]ourt.
75 Pa.C.S. § 3807 (text emphasis added).
This Court has explained:
The principle upon which ARD operates is that if the
participant behaves, upon successful completion of the
program, that person is spared the punishment provided by
law for those not accepted into the [ARD] program. Once
a participant violates the [ARD] program, however,
that person returns to “square one” for resentencing
and, in this case, is subject to the civil penalty DOT is
required by law to impose.
6
Dep’t of Transp., Bureau of Driver Licensing v. Gretz, 538 A.2d 976, 978 (Pa.
Cmwlth. 1988) (emphasis added).
Specifically, Section 3804(e) of the Vehicle Code mandates, in
pertinent part:
Suspension of operating privileges upon conviction.--
(1) [DOT] shall suspend the operating privilege of an
individual under paragraph (2) upon receiving a
certified record of the individual’s conviction of or an
adjudication of delinquency for:
(i) an offense under [S]ection 3802 [of the Vehicle
Code]; []
....
(2) Suspension under paragraph (1) shall be in accordance
with the following:
(i) Except as provided for in subparagraph (iii), 12
months for an ungraded misdemeanor or
misdemeanor of the second degree under this
chapter.
75 Pa.C.S. § 3804(e) (text emphasis added).
Discussion
DOT first argues that the trial court abused its discretion and erred as a
matter of law by crediting Licensee 60 days toward his 12-month license suspension
because the trial court lacked authority to grant an administrative credit. DOT relies
upon Department of Transportation, Bureau of Traffic Safety v. Yarbinitz, 508 A.2d
641 (Pa. Cmwlth. 1986), to support its position.
The Yarbinitz Court held:
[F]or purposes of a license suspension appeal, a trial court
lacks the authority to compute and give credit for any time
that DOT may have been in possession of [a licensee’s]
7
license. The function of the trial court in an appeal from a
license suspension is to determine the validity of the
suspension. Once the identity of the party whose license
is suspended is established and the grounds for the
suspension are found to be proper, the trial court’s inquiry
is ended.[6] Even assuming [the licensee] was entitled to
credit, this is not a basis for sustaining the appeal. If the
person whose license is suspended committed the offense,
and if the offense is a valid basis for suspension and no
violation of due process has occurred, then the suspension
must be upheld and the operator’s appeal dismissed. The
trial court can do no more. Therefore, a suspension cannot
be invalidated if it was properly imposed, even if it has
already been served.
. . . . If [a licensee] believes he is entitled to credit against
the suspension for time DOT may have been in possession
of his license, his recourse is to apply to DOT.
Id. at 642 (citation omitted); see also Ladd v. Dep’t of Transp., Bureau of Driver
Licensing, 753 A.2d 318, 321 n.6 (Pa. Cmwlth. 2000) (“[T]he courts of common
pleas are without authority to give a licensee credit toward a license suspension.”);7
Dep’t of Transp., Bureau of Driver Licensing v. Sullivan, 594 A.2d 791, 793 (Pa.
Cmwlth. 1991) (“[A]ll questions of credit towards a suspension are exclusively
within the province of DOT.”); Dep’t of Transp., Bureau of Driver Licensing v.
Cardell, 568 A.2d 999 (Pa. Cmwlth. 1990) (same); Dep’t of Transp., Bureau of
Driver Licensing v. Palmer, 552 A.2d 321 (Pa. Cmwlth. 1988) (same).
6
Here, “[t]here is no dispute that [Licensee] was the individual whose license was revoked
and who committed the offense which resulted in the license suspension.” Dep’t of Transp.,
Bureau of Driver Licensing v. Palmer, 552 A.2d 321, 323 (Pa. Cmwlth. 1988).
7
Cf. Waite v. Dep’t of Transp., Bureau of Driver Licensing, 834 A.2d 1218 (Pa. Cmwlth.
2003) (Therein, this Court held that the common pleas court had subject matter jurisdiction because
Waite challenged whether DOT acted in accordance with the law when it failed to treat each
suspension period as beginning on the day he surrendered his license to the common pleas court.
“The common pleas court accurately perceived that Waite did not request a recalculation of his
suspensions.” Id. at 1221 (emphasis added).).
8
For the foregoing reasons, this Court agrees with DOT that Yarbinitz
controls.8 Accordingly, the trial court did not have the authority to grant Licensee
an administrative credit.
Notwithstanding, assuming arguendo that the issue was properly before
the trial court, the trial court would have erred by crediting Licensee’s one-year
license suspension with his 60-day ARD license suspension, as each license
suspension is independent and distinct from the other. The trial court imposed the
60-day license suspension as mandated by Section 3807(d) of the Vehicle Code as
“a condition of [Licensee’s] participation in an [ARD] program[.]” Id.; see also R.R.
at 48a (July 10, 2018 Notice of Suspension). Specifically, Section 3807(d) of the
Vehicle Code requires: “As a condition of participation in an [ARD] program, the
[Common Pleas C]ourt shall order the [licensee’s] license suspended . . . [] [f]or
60 days if: [] the [licensee’s] blood alcohol concentration at the time of testing was
0.16% or higher[.]” 75 Pa.C.S. § 3807(d) (emphasis added).
In the instant case, Licensee voluntarily applied to be considered for
ARD. Thus, he agreed to the 60-day license suspension as a condition of his
admittance into the ARD program. Accordingly, in order to proceed with the ARD
program, which if Licensee successfully completed would result in no DUI
conviction and expungement of his DUI arrest, Licensee agreed to the 60-day
license suspension to avail himself of the aforementioned opportunity. The ARD
8
The Dissent maintains that applying Yarbinitz and the other cases to the instant case
“suggests that DOT has discretion to increase the length of the suspension beyond the statutory
limit . . . .” Dep’t of Transp., Bureau of Driver Licensing v. Foltz, ___ A.3d ___, ___ (Pa. Cmwlth.
No. 243 C.D. 2021, filed Aug. 8, 2022) (Leadbetter, J., dissenting) (emphasis added), slip op. at 1.
The Majority rejects the Dissent’s suggestion that applying Yarbinitz and its progeny to the instant
case somehow changes this Court’s holdings therein or in any manner gives DOT discretion to
increase the length of a license suspension beyond the statutory limit.
9
program is separate and apart from any license suspension imposed as a result of a
DUI conviction.9
Licensee’s one-year license suspension was imposed as mandated by
Section 3804(e)(2)(i) of the Vehicle Code, as a penalty for Licensee’s DUI
conviction. See id.; see also R.R. at 41a (June 19, 2020 Notice of Suspension).
Section 3804(e) of the Vehicle Code mandates: “[DOT] shall suspend the
operating privilege of an individual . . . upon receiving a certified record of the
individual’s conviction . . . for: . . . 12 months for an ungraded misdemeanor or
misdemeanor of the second degree under this chapter.” 75 Pa.C.S. § 3804(e)
(emphasis added). The General Assembly clearly communicated to the trial court
in Section 3807 of the Vehicle Code the length of the license suspension as a
condition to participate in the ARD program. Similarly, the General Assembly
expressly directed DOT in Section 3804 of the Vehicle Code under what
circumstances the license suspension shall be imposed upon a DUI conviction and
the length thereof.
The General Assembly’s directives are unequivocal as to what act must
be taken when ARD is granted and when there is a DUI conviction. The Vehicle
Code does not in any manner grant either the trial court or DOT any discretion for
imposition of the license suspension. Nor does the Vehicle Code contain any
9
The Dissent disagrees that a license suspension based on an ARD is separate and distinct
from a license suspension based on a conviction and posits: “Does the [M]ajority mean to hold
that if, after a licensee is convicted of DUI and serves his year suspension, he wins a new trial on
appeal, his conviction on retrial triggers another year of suspension? If so, I disagree.” Foltz, slip
op. at 3. The answer is undeniably no. Plainly, a conviction is not separate and distinct from a
conviction. Thus, a license suspension based on a conviction for a specified offense, whether that
conviction is vacated and reinstated, is still based on a conviction for the specified offense, thereby
not triggering another year of suspension. However, “[o]nce a participant violates the [ARD]
program, . . . that person returns to ‘square one,’” and is subject to the civil penalty DOT is required
by law to impose. Gretz, 538 A.2d at 978.
10
language that gives any court or DOT authority to provide a license suspension
different than the plain language of the statute. “It is not within this Court’s power
to alter this scheme and the impact of any [alleged alternative] is more properly
addressed directly to the legislature.” Spectrum Arena LP v. Commonwealth, 983
A.2d 641, 651 (Pa. 2009). The law is well established that “where the language of
a statute is clear and unambiguous, a court may not add matters the legislature saw
fit not to include under the guise of construction.” Mohamed v. Dep’t of Transp.,
Bureau of Motor Vehicles, 40 A.3d 1186, 1194-95 (Pa. 2012).
Thus, the Vehicle Code, in two different sections, explicitly sets forth
the required license suspension for an ARD and the required license suspension for
a DUI conviction, and expressly directs the mandatory license suspension the trial
court shall impose as an ARD condition, and the mandatory license suspension DOT
shall impose for a DUI conviction. Further, the trial court, DOT and this Court must
adhere to and implement the Vehicle Code’s clear language. Accordingly, there is
no basis in the Vehicle Code to credit the mandatory license suspension imposed as
part of the voluntary ARD program against the mandatory license suspension
imposed as a consequence of a DUI conviction.
Conclusion
For all of the above reasons, the portion of the trial court’s order
denying Licensee’s appeal from his license suspension and reinstating his one-year
11
license suspension is affirmed. The portion of the trial court’s order directing DOT
to apply 60 days of credit to Licensee’s suspension is reversed.
_________________________________
ANNE E. COVEY, Judge
Judge Wallace did not participate in the decision in this matter.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
:
v. :
:
: No. 243 C.D. 2021
Royce Foltz, II :
ORDER
AND NOW, this 8th day of August, 2022, the portion of the York
County Common Pleas Court’s (trial court) February 17, 2021 order denying Royce
Foltz, II’s (Licensee) appeal from his license suspension and reinstating his 12-
month license suspension is AFFIRMED. The portion of the trial court’s order
directing the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing, to apply 60 days of credit to Licensee’s suspension is
REVERSED.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
:
v. : No. 243 C.D. 2021
: SUBMITTED: February 4, 2022
Royce Foltz, II :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
DISSENTING OPINION BY
SENIOR JUDGE LEADBETTER FILED: August 8, 2022
I must respectfully dissent. I agree with the Yarbinitz1 case, relied upon
by the majority, to the extent that it holds that a licensee’s service of the full period
of his suspension before his appeal is heard does not give the trial court a valid basis
to sustain the appeal. Nonetheless, I believe Yarbinitz and the other cases cited by
the majority should be overruled to the extent they hold that the court cannot order
the Department of Transportation (DOT) to credit time already served to the period
of suspension remaining. To apply those holdings in this case suggests that DOT
has discretion to increase the length of the suspension beyond the statutory limit and
the courts lack authority to order otherwise. I disagree, and therefore disagree with
our leaving that suggestion in place.
It is beyond doubt that DOT lacks the power to require service of a
suspension in excess of the statutory limit, which it certainly appears that DOT
1
Dep’t of Transp., Bureau of Traffic Safety v. Yarbinitz, 508 A.2d 641 (Pa. Cmwlth. 1986).
intends to do here. The majority endorses the principle that “all questions of credit
towards a suspension are exclusively within the province of DOT.” (Majority Op.,
slip op. at p. 8) [quoting Dep’t of Transp., Bureau of Driver Licensing v. Sullivan,
594 A.2d 791, 793 (Pa. Cmwlth. 1991)]. Nonetheless, exercise of this discretion is
not unbridled. The removal of the licensee from the Accelerated Rehabilitative
Disposition (ARD) program and his consequent retrial muddies the water here, but
suppose in the first instance after a driving under the influence (DUI) conviction
DOT were to impose a suspension double, or otherwise in excess, of the statutory
limit. On appeal, could the trial court not sustain the appeal in part and reverse in
part, affirming the suspension but limiting the suspension to the statutory
length? To hold that the court in that circumstance would be required to affirm the
entire suspension exactly as DOT ordered or sustain the appeal and vacate the
suspension entirely would seem absurd, and yet I fail to see how the unusual
procedural posture here makes any difference to the issue of the court’s authority. I
do not suggest that the trial court has any discretion, only that it should have the
power to confine DOT to its lawful authority.2
I disagree that the licensee’s voluntary acceptance of ARD somehow
waived his right to object to duplicative civil sanctions as the result of a single DUI
offense. I also disagree with the majority’s apparent theory that suspension is the
collateral consequence of an adjudicatory procedure itself3 rather than a collateral
2
Repeatedly, this Court has held that the only issues in a civil license suspension appeal are
whether the motorist was in fact convicted and whether DOT acted in accordance with applicable
law. Orndoff v. Dep’t of Transp., Bureau of Driver Licensing, 654 A.2d 1 (Pa. Cmwlth. 1994). It
seems to me that imposing a suspension greater than the statutory limit falls within the ambit of
DOT acting contrary to applicable law, which is within the trial court’s power to review.
3
“[T]he trial court would have erred by crediting Licensee’s one-year license suspension with
his 60-day ARD license suspension, as each license suspension is independent and distinct from
the other.” (Majority Op., slip op. at p. 9.)
BBL - 2
consequence of the offense, such that multiple trials resulting from the same DUI
offense will trigger multiple suspensions. On the contrary, I believe that the intent
of the Vehicle Code4 is simply to provide different lengths of suspension based on
the seriousness of the offense or culpability of the offender, as measured by the
procedure. In other words, while the nature of the procedure is significant, its
occurrence has no independent effect. Because the second procedure in this case
was a trial and conviction, Licensee’s suspension legally is extended from sixty days
to one year, but not to a year and sixty days. Does the majority mean to hold that if,
after a licensee is convicted of DUI and serves his one-year suspension, he wins a
new trial on appeal, his conviction on retrial triggers another year of suspension? If
so, I disagree. If not, how is the situation at bar any different?
For the reasons stated above, I would hold that the trial court has
jurisdiction over the legality of both the fact of suspension and its length, and I would
affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
4
75 Pa.C.S. §§ 101-9805.
BBL - 3