COM., DEPT. OF TRANSP. v. CERN, 145 Pa. Commw. 647 (1992)

604 A.2d 1135

Commonwealth Court of Pennsylvania.Argued November 22, 1991.
Decided February 24, 1992.

Appeal from the Common Pleas Court, Bucks County, No. 90-006184-19-1, Susan Devlin Scott, J.

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Timothy P. Wile, Asst. Counsel-in-Charge of Appellate Section, for appellant.

John J. Kerrigan, for appellee.

Before COLINS and KELLEY, JJ., and BARBIERI, Senior Judge.

BARBIERI, Senior Judge.

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals an order of the Court of Common Pleas of Bucks County (common pleas court) which sustained the appeal of John Cern, III (Cern), from a five-year revocation of his operating privilege within Pennsylvania imposed by DOT pursuant

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to Section 1542 of the Vehicle Code (Code), 75 Pa. C.S. § 1542.[1]
We will reverse.

On March 1, 1985 and, again, on April 25, 1985, Cern, while a Pennsylvania resident with a Pennsylvania driver’s license, committed two offenses enumerated in Section 1542 of the Code for which he accepted Accelerative Rehabilitative Dispositions (ARDs).[2] Prior to committing his third offense on January 17, 1990, Cern moved to New Jersey and surrendered his Pennsylvania driver’s license to New

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Jersey authorities in order to secure a valid New Jersey driver’s license.[3]

In June 1990, DOT advised Cern by official notice that his driving privileges were scheduled to be revoked for five years pursuant to Section 1542(a) of the Code, 75 Pa. C.S. § 1542(a). This official notice was sent to Cern’s former Pennsylvania address which was the only address listed for Cern in DOT’s records.[4]

Cern timely appealed DOT’s revocation of his driving privileges and, after de novo hearing, the common pleas court sustained his appeal, stating:

At the time of the hearing this Court examined the official notice sent to the Appellee [Cern]. As previously stated[,] this notice (sent by Pennsylvania) was sent to Appellee at his old address in Pennsylvania. The citation clearly shows his address to be Trenton[,] New Jersey[,] so that the State of Pennsylvania was on notice that the Appellee was no longer a resident. Additionally, there can be no question that Pennsylvania authorities have no power to revoke or suspend a driver’s license issued by a sister State, here New Jersey. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing v. Bender, 107 Pa. Commw. 475, 529 A.2d 44 (1987). The notice asks him to return his driver’s license to the Bureau. The Appellee had already complied with the requirements of the notice, he had already surrendered his Pennsylvania license.

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Department of Transportation v. Cern 9 Pa. D. C. ___, 175, 177-78 (1991) (emphasis in original).[5] It is from this determination that DOT filed the instant appeal.

Two issues are before us for disposition: (1) whether DOT has the power and authority to revoke the operating privilege of a nonresident motorist as a habitual offender for offenses committed in Pennsylvania and (2) whether a motorist’s act of surrendering a Pennsylvania driver’s license to another jurisdiction in order to secure a driver’s license from that other jurisdiction insulates the motorist from revocation of his or her Pennsylvania operating privilege upon conviction of offenses committed in Pennsylvania which mandate revocation of the motorist’s Pennsylvania operating privilege. This court’s scope of review, of course, includes questions of law McGhee v. Commonwealth of Pennsylvania, 85 Pa. Commw. 310, 481 A.2d 1237 (1984), appeal dismissed as having been improvidently granted, 510 Pa. 488, 509 A.2d 1255 (1986).

Pursuant to Section 1546(a) of the Code, 75 Pa. C.S. § 1546(a), “[t]he privilege of driving a motor vehicle on the highways of this Commonwealth given to a nonresident shall be subject to suspension or revocation by the department in like manner and for like cause as a resident’s operating privilege.” This section has been previously applied by this court to uphold suspensions of nonresident motorists’ driving privileges within Pennsylvania pursuant to Sections 1547 and 1539 of the Code, 75 Pa. C.S. §§ 1547, 1539.

In Department of Transportation, Bureau of Driver Licensing v. Bender, a nonresident motorist’s driving privilege within Pennsylvania was suspended by DOT pursuant to Section 1547 of the Code, 75 Pa. C.S. § 1547, for failure to submit to chemical testing. On appeal, we stated:

There can be no question that Pennsylvania authorities have no power to revoke or suspend a driver’s license issued by a sister state, here New Jersey. That lack of

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authority is recognized by Section 1546 of the Vehicle Code, 75 Pa. C.S. § 1546, that provides that a nonresident’s privilege to drive a motor vehicle in this Commonwealth is subject to suspension in the same manner as that of a resident. See McGhee v. Commonwealth, 85 Pa. Commw. 310, 481 A.2d 1237 (1984), appeal dismissed, 510 [Pa.] 488, 509 A.2d 1255
(1986). Therefore, while the Bureau could not suspend Bender’s New Jersey driver’s license, it could suspend his driving privileges within this Commonwealth for a refusal to submit to a breathalyzer.

Bender, 107 Pa. Commw. 475, 480-481, 529 A.2d 44, 46
(1987), reversed on other grounds, 522 Pa. 104, 560 A.2d 123
(1989) (emphasis added).

Likewise, in McGhee, this court held that DOT could suspend a nonresident motorist’s operating privilege within Pennsylvania as a “second time” offender pursuant to Section 1539 of the Code, 75 Pa. C.S. § 1539.[6] Judge Blatt, speaking for this court, reasoned as follows:

Section 1535(a) of the Vehicle Code, 75 Pa. C.S. § 1535(a) provides, in part, that:
A point system for driver education and control is hereby established which is related to other provisions for use, suspension and revocation of the operating privilege as specified under this title. Every driver licensed in this Commonwealth who is convicted of any of the following offenses shall be assessed points as of the date of violation. . . . (Emphasis added.)
The appellant would have us limit the assessment of points to drivers currently licensed in this Commonwealth. Section 1546(a) of the Vehicle Code, 75 Pa. C.S.

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§ 1546(a) empowers DOT to suspend or to revoke the ‘privilege of driving a motor vehicle on the highways of the Commonwealth given to a non-resident . . . in like manner and for like cause as a resident’s operating privilege.’ Id. While a non-resident is exempt from the licensing requirements of the Vehicle Code under 75 Pa. C.S. § 1502(3), we believe that, when Sections 1535(a) and 1546(a) are read in pari materia, it is clear that a non-resident is exempt from neither the assessment of penalty points nor any consequent suspension of his operating privileges if he abuses such privileges while driving in Pennsylvania.

Id. 85 Pa. Commw. at 312-313, 481 A.2d at 1238
(emphasis in original).

Finding no reasonable basis upon which to distinguish the instant case from Bender and McGhee, we conclude that DOT, by virtue of Section 1546(a) of the Code, 75 Pa. C.S. § 1546(a), could revoke Cern’s operating privilege within Pennsylvania as a habitual offender for offenses he committed in this Commonwealth pursuant to Section 1542 of the Code, 75 Pa. C.S. § 1542.

Cern argues, however, that DOT lacked the authority to act under Section 1542 because the record contains no evidence to indicate that DOT maintains the records referred to in Section 1542 for nonresident motorists and, thus, application of habitual offender status to him is not supported. We disagree.

DOT is clearly required by law to maintain the types of records referred to in Section 1542 for all drivers See Sections 1531, 6322, 6323 and 6325 of the Code, 75 Pa. C.S. §§ 1531, 6322, 6323, 6325.[7] A prima facie presumption

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exists, until the contrary appears, that DOT has acted according to law.[8] The record here contains nothing to rebut this presumption.

Regarding the second issue, we initially note that the terms, driver’s license and operating privilege, are not interchangeable under the Code.[9] Section 1542, pursuant to which DOT acted here, applies only to operating privileges. The notice of revocation issued to Cern by DOT clearly states that Cern’s “driving privileges [were] being revoked for a period of 5 years as mandated by Section 1542 A of the Vehicle Code.” (Emphasis added.) Accordingly, it was not Cern’s driver’s license that DOT acted to revoke and therefore his act of surrendering his Pennsylvania driver’s license to New Jersey authorities in order to secure a valid New Jersey driver’s license would not insulate him from revocation of his operating privilege within Pennsylvania.[10]

Cern argues, however, that DOT was, in fact, acting to revoke his New Jersey driver’s license because the notice

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of revocation also directed him to relinquish his driver’s license: “In order to comply with this suspension/revocation, you are required to return any driver’s license . . . in your possession . . . Credit will not begin until license is received by Bureau.” It is this language upon which the common pleas court apparently based its statements “that Pennsylvania authorities have no power to revoke or suspend a driver’s license issued by a sister State, here New Jersey” and that “[Cern] had already complied with the requirements of the notice [because] he had already surrendered his Pennsylvania license.” At 178 (emphasis in original).[11]

As noted by the common pleas court, “this notice . . . was sent to [Cern] at his old address in Pennsylvania.” At 177. Obviously, DOT viewed Cern as a Pennsylvania resident and, accordingly, sent him a notice of revocation intended for resident motorists.[12]

Clearly, a notice of revocation of driving privileges can only be sent to a motorist’s last known address. Here, Cern’s last known address as recorded in DOT’s official files was his former Pennsylvania address.

Cern, of course, bore the responsibility of informing DOT of his change of address pursuant to Section 1515 of the Code, 75 Pa. C.S. § 1515,[13] but there is nothing in the record

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to indicate that he did so.[14] Absent such notification of a change of address, it was neither unreasonable nor improper for DOT to rely upon the address officially listed in its records as Cern’s last known address, despite a contrary address on the citation issued to Cern for his third offense.[15] Otherwise, Section 1515 of the Code, 75 Pa. C.S. § 1515, would be rendered ineffective. Moreover, to conclude differently might compel DOT to act contrary to a statutory directive that it issue written notices of suspension or revocation of operating privileges to persons at their addresses of record. See n. 12.

For the foregoing reasons, we will reverse the order of the common pleas court and reinstate the five-year revocation of Cern’s Pennsylvania operating privilege imposed by DOT.[16]

KELLEY, J., dissents.

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ORDER
AND NOW, this 24th day of February, 1992, the order of the Court of Common Pleas of Bucks County, dated January 17, 1991, at No. 90-006184-19-1, is hereby reversed and the five-year revocation of the operating privilege of John Cern, III, within Pennsylvania imposed by DOT pursuant to Section 1542 of the Vehicle Code, 75 Pa. C.S. § 1542, is reinstated.