Commonwealth v. Rose

McEWEN, P.J.E.,

Concurring and Dissenting:

¶ 1 Since the author of the majority Opinion has provided a sound rationale of position and a perceptive expression of view, I hasten to join in that portion of the Opinion that holds that the charges withdrawn at the district justice level were properly reinstated in response to the appeal filed by appellant. I am, however, unable to agree that appellant could collaterally attack the validity of the Florida license suspension in this prosecution for violation of 75 Pa.C.S. § 1606. Cf. Commonwealth v. Wolf, 534 Pa. 283, 632 A.2d 864 (1993); Fetty v. Dept. of Transportation, Bureau of Driver Licensing, 784 A.2d 236 (Pa.Cmwlth.2001); O’Hara v. Dept. of Transportation, Bureau of Motor Vehicles, 691 A.2d 1001 (Pa.Cmwlth.1997), affirmed per curiam, 551 Pa. 669, 713 A.2d 60 (1998).

¶ 2 Contrary to the assertion of appellant, I do not find any requirement that the prosecution, in a proceeding under Section 1606(c)(l)(ii) of the Vehicle Code, establish that the commercial driver has actual notice of the suspension of his driving privileges. As I do not believe that a judicially created notice requirement, in the context of commercial licenses, is appropriate, I am unable to join in this holding of this majority.

¶ 3 As I view this factual scenario, since the Pennsylvania offense is predicated on the suspension of appellant’s Florida license, rather than permitting a collateral attack upon the decision of a Florida agency, appellant should litigate the validity of the Florida suspension in the courts of Florida, presumably his home state, and if there successful, cause the Pennsylvania offense to be voided based on the Florida court’s nullification of the suspension.