617 A.2d 43 | Pa. Commw. Ct. | 1992
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles (DOT) appeals from an order of the Allegheny County Court of Common Pleas sustaining the appeal of Century III Chevrolet, Inc. (Century III) from a DOT order suspending Century Ill’s dealer registra
The undisputed facts may be summarized as follows. On August 4, 1989, DOT issued a warning letter to Century III, advising that Century III had twice violated the requirement of 75 Pa.C.S. § 1103(d)
At the appeal hearing, Century III admitted two of the violations charged
The trial court determined that DOT had failed its burden as to the six contested violations, held the two admitted violations to be de minimis and sustained Century Ill’s appeal. The entire opinion disposing of the appeal is as follows:
This is a case involving suspensions for temporary registration cards and dealer plates. Defendant concedes that twice the appropriate information was not mailed or delivered. In the other six instances, the Defendant maintains that he (sic) mailed the appropriate information and that the Commonwealth has no evidence that it was not mailed.
We find the two admitted instances to be de minimis infractions and so we will sustain the appeal.
While this opinion does not discuss either the shifting burden of proof or the presumption issue argued here by DOT, it does provide sufficient information to address the issue of the two admitted violations. Thus, it is not necessary to remand the case for an explanation of the trial court’s rulings on the evidentiary issues DOT presents. See, Appeal of Mellon Bank, N.A., 78 Pa.Commonwealth Ct. 463, 467 A.2d 1201 (1983) (where rationale for decision is minimally apparent from the record remand is not necessary).
When reviewing a DOT suspension, the trial court is confined to an examination of whether or not the person charged committed the violation at issue. Department of Transportation v. Verna, 23 Pa. Commonwealth Ct. 260, 351 A.2d 694 (1976). A trial court may only modify the penalty imposed by DOT if it reaches different findings of fact and conclusions of law after a de novo review. Department of Transportation v. Ede Motor Co., 107 Pa.Commonwealth Ct. 107, 527 A.2d 632 (1987). Thus, the trial court could not modify the suspension imposed here unless it determined that Century III did not commit the violations charged. Century III admitted 2 violations; as discussed below, this is sufficient to uphold the suspension.
Century III argues that use of the word “may” in the regulation allows DOT discretion in imposing a penalty for violation of § 1103.1. It also argues that, because the trial court found only two violations, it reached different findings of fact and was free to modify the penalty imposed by DOT. There are two flaws to this reasoning. First, it is premised upon the assumption that DOT has discretion in deciding whether to impose a penalty for a violation. Second, this argument presupposes that the one month suspension is a single penalty imposed for all eight violations rather than eight one month suspensions imposed for eight separate violations.
It is clear that in certain instances “may” can mean “shall” and “shall” can mean “may”. Hotel Casey v. Ross, 343 Pa. 573, 23 A.2d 737 (1942). The term “may” appears in 67 Pa.Code § 43.11 four times. Twice it is used in connection with the phrase “in its [DOT’s] discretion”; twice it stands alone. The term “may” appears in 67 Pa.Code § 53.9 three times. Twice it is used in connection with the phrase “in its [DOT’s] discretion”; once it stands alone. Were we to hold that the term “may” confers discretion every instance it is used we would effectively render the phrase “in its discretion”
We are likewise precluded from construing the DOT suspension order as a single one month penalty imposed for eight violations. Although the suspension order is silent on this issue, the regulations provide that, when considering multiple violations, DOT will impose separate penalties for each violation. 67 Pa.Code §§ 43.11(c), 53.9(d).
Having concluded that there are eight separate penalties involved, the trial court’s error is clear. Century III admitted two of the violations charged. The trial court was not free to conclude that these violations were de minimis. Ede Motor, 107 Pa.Commonwealth Ct. at 110, 527 A.2d at 634. Thus, regardless of the different findings as to the remaining six violations, the suspension imposed for the two admitted violations must be upheld.
Reversed.
ORDER
NOW, August 13, 1992, the order of the Allegheny County Court of Common Pleas entered at SA 2580 of 1991 on October 30, 1991 is reversed.
. 75 Pa.C.S. § 1103(d) which required submission within 10 days of the date of purchase, was repealed by the Act of June 30, 1990, P.L. 266. The current section governing the title application period appears at 75 Pa.C.S. § 1103.1 and provides that the dealer shall mail or deliver the title application to DOT within 20 days of the date a vehicle is purchased.
. Specifically, Century III admitted that it did not mail the title application for a truck purchased September 27, 1990 until November 7, 1990. That application was received by DOT on November 13, 1990. Another car was purchased on October 16, 1990; Century III admitted mailing the title application on November 29, 1990. DOT received that application on December 4, 1990.
. Century III acknowledges that eight separate penalties were imposed for each violation. (Appellee’s brief at 13-14). We see no consistency in this admission and the argument that the trial court could treat the suspension as a single penalty imposed for all eight violations and then reduce the suspension because it found only two violations. We are forced to conclude from the substance of Century Ill’s argument that they interpret DOT's suspension order as one penalty for eight violations.
. Although § 43.11(c) uses the term “may” instead of the term “will” which appears in § 53.9(d), it is not used with the phrase “in its discretion” and so carries a mandatory rather than discretionary connotation as discussed above.