*1 in Mindala chief police Township Unlike the and the care, Ross Police exercised custody and control of the site highway. accident and traffic on the The complaint allegations contains raising questions factual concerning whether Ross Police negligently created a dangerous condition and therefore summary judgment is inappropriate.
I would reverse the decision pleas of the common and remand the matter for further proceedings.
LICENSING, Appellee.
Commonwealth Court of Pennsylvania.
Argued Oct. 1991. April
Decided 1992. police or are needed morning between hours of six night, five usually, at the State normally charge Police would take that. Q. night? How about after five at A. Then the Township Ross Police. Q. any agreement Is there understanding regulations or that —or o’clock, that, rules that after Township five it’s Ross and before it’s State Police? A. agreement. There’s no document Q. just way things normally go? That’s A. Yes. Q. you Has that been working police the case since started sis a Township? officer for Ross A. Been the case since I’ve been Chief of Police. Deposition Houssock, 27, 1987, 63-66; May of John Reproduced at Record at 84a-86a. *2 Stark,
Shelley Div., of Appellate Chief for appellant. Wile, P. Timothy Asst. Counsel-in-Charge Appellate Section, for appellee. CRAIG, DOYLE,
Before President Judge, COLINS, PALLADINO, McGINLEY, PELLEGRINI, SMITH and JJ.
McGINLEY, Judge. Duffey appeals Ian M. from an order of the Court Common Pleas Allegheny County that dismissed his *3 a appeal of ninety-day suspension of his operating privi- leges imposed by the Department Transportation (DOT). of 7, 1990, On June Duffey, age twenty, then was cited for “purchase, consumption, possession or transportation of liquor beverages” or malt in 6308(a) violation of Section of Code, the 6308(a).1 Crimes 18 Pa.C.S. His plea guilty § 12, 27, was entered on June 1990. On June the district justice Duffey’s certified conviction to DOT and signed an order directing suspend DOT to operat- Duffey’s ing privileges in accordance with Section 6310.4 the Crimes 18 Pa.C.S. 6310.4.2 By official notice dated § 6308(a) provides: 1. Section he, person A summary being a commits if offense less than 21 years age, consumes, attempts purchase, purchases, possesses to knowingly intentionally transports any or and liquor or or malt beverages____ brewed 6310.4, 2. Section operating entitled privileges,” pro- "Restriction of pertinent part: vides in (a) person General rule. —Whenever adjudi- a is or convicted is delinquent cated any preadjudication program or is admitted to (relating misrepresentation a violation of section age to to liquor beverages), (relating secure or or pur- malt brewed to chase, consumption, possession transportation liquor or or malt beverages) or brewed (relating carrying to 6310.3 a false identifi- court, card), including cation the a court not of if is record it exercising jurisdiction pursuant 1515(a) (relating to 42 Pa.C.S. to privi- driving that his Duffey notified DOT July ninety days. period for a suspended to be leges were with the suspension statutory appeal filed a Duffey (common Allegheny County Pleas of of Common Court repre- held, Duffey, at court). hearing was which A pleas his defender, withdraw filed a motion by public a sented that, He asserted charge. the plea guilty that he pleading not informed before he was because operat- of his mandatory suspension to a subject be would pleas common his was invalid. The ing privileges, that the chal- the basis Duffey’s appeal on dismissed on the criminal convic- attack collateral lenge constituted challenge context tion, be raised the it could not appeal a notice of Duffey filed suspension. the license the to transfer filed a motion Superior Court. DOT 7, 1991, Court, and, May order dated Commonwealth the motion. granted Superior Court his license contends that appeal, Duffey On suspension pursu- criminal sentence because illegal that must be to Section 6310.4 is ant and must pleads guilty the defendant before explained to sentencing.3 at by the court venue), operating privilege of jurisdiction shall order suspended. copy shall be transmitted to the person A the order Transportation. Department of suspends department (b) suspension. Duration of —When (a), person duration of operating privilege subsection of a under be as follows: shall offense, days (1) period from the date of of 90 For a first *4 suspension. offense, year period date of (2) a of one from the aFor second suspension. thereafter, offense, period (3) any a of and offense For a third Any multiple suspension. sentences years of the date two from consecutively. imposed shall be served illegal Duffey argues was an sentence that the also 3. by by By a a but rather DOT. court order it was not because Duffey, suppress we have held ruling filed previous on a motion DL-21C(5- completed copy a DOTForm a of Ordering that the record includes Operating 88), Suspension of “Report a Court entitled of Chapter On 63 of Title 18.” Privileges of a Violation of as the Result violation committed is checked as the form “18 Pa.C.S. 6308” 284 court has held consistently
This
licensee
challenge
may
collaterally
underlying
conviction for
of
criminal violation
the Vehicle
in the civil
Code4
suspension appeal proceeding. Department
Transpor
Soder,
v.
492,
110
tation
Pa.Commonwealth
532 A.2d
Ct.
(1987).
only
948
issues
properly raised
civil license
suspension cases are whether the licensee was convicted
DOT acted in
accordance with law. Martino
and whether
Commonwealth,
116
v.
Ct.
Pa.Commonwealth
A.2d
(1988).
recently,
More
we have
this
applied
same
from
principle
suspensions imposed pur
See,
e.g.,
suant
to Section 6310.4
the Crimes
Code.
Department
Transportation, Bureau Driver Licens
Heeter,
ing
Ct.
Pa.Commonwealth
Section 6310.4 found the Crimes Title of the All Pennsylvania Consolidated Statutes.5 other license sus- pensions over which this court exercises appellate jurisdic- disposition. "Conviction” checked as the A box marked “Order signed by of Court” and the district states: NOW, AND HAVING MADE THE ABOVE RECORDED DISPOSI- TION, IN ACCORDANCE WITH THE MANDATORY PROVISIONS 6310.4(a), OF 18 PA.C.S. § THIS COURT ORDERS THAT THE OPERATING PRIVILEGE OF THIS PERSON BE A SUSPENDED. COPY OF ORDER THIS IS TO BE FORWARDED TO THE DEPART- MENT OF TRANSPORTATION IN ORDER THAT THE SUSPEN- SION CAN BE RECORDED IN ACCORDANCE WITH THE PROVI- 6310.4(b). OF 18 PA.C.S. § SIONS However, Supplemental Reproduced copy Record at 3b. this Duffey.
document was not sent 4. 75 Pa.C.S. §§ 101-9910. 25, 1988, legislature
5. The enacted in the § 6310.4 Act March P.L. part, amending (Crimes which is titled in "An Act Title 18 Offenses) Pennsylvania pro- Consolidated Statutes ... further viding relating for offenses to alcohol."
285 of the Vehicle provisions imposed pursuant tion are 6310.4(a) person that whenever provides Title 75. Section underage drinking of- committing various is convicted of to a is admitted (or delinquent is adjudicated fenses offense), for such program preadjudication “[T]he person sus- operating privilege shall order ... shall be transmitted to A of the order copy pended. 6310.4(b)specifies Section Transportation.” Department including impose, DOT shall periods offense, for a first mandatory ninety-day involved in this case. which what is Code, 42 Pa.C.S. estab- 762 of the Judicial appeals over from the of this court jurisdiction lishes the part: pleas provides courts common (a) Court shall Commonwealth General [T]he rule.— from final orders exclusive jurisdiction have following cases: in the pleas the courts of common crimi- regulatory (2) and Commonwealth Governmental for the proceedings criminal actions or cases.—All nal of any: violation any Common-
(ii) Regulatory statute administered Subchapter Chapter A of agency subject wealth of Common- practice procedure (relating Title as used agencies). ‘regulatory The term statute’ wealth any provision include subparagraph does not this (Empha- and and (relating Title 18 to crimes offenses. added.) sis involving appellate jurisdiction this court’s recognize
We
such as
regulatory
defined in
statutes
offenses
Law,6
appellate juris-
assumed
and we have
Clean Streams
the Crimes Code
under
closely
charges
related
diction over
of a crime over
the existence
they
upon
are based
when
charges
conspir-
as
has
such
jurisdiction,
the court
which
Law.
in The Clean Streams
crime defined
acy to commit a
amended,
1937, P.L.1987,
through
as
P.S.
691.1
§§
of June
6. Act
691.1001.
*6
See,
Tyson,
Commonwealth
e.g.,
Pa.Commonwealth
(1981). However,
762(a)(2)(H)
Ct.
Section 6310.4 mandates a driver’s license imposed anyone age be on under the of who twenty-one (Section his misrepresents age beverages to secure alcoholic 6307), consumes, possesses purchases, transports such (Section 6308) or beverages carries a false identification (Section 6310.3). offenses, card Of those only transport- the ing beverages of alcoholic involves conduct that might a involve motor vehicle—all of the other do offenses not. Duffey under which licensee charged, was provides (b): in subsection
Penalty. addition to the penalty imposed pursuant —In to section (relating to restriction operating 6310.4 of privileges), person violating convicted of (a) subsection sentenced to may pay fine not more than $500 the second subsequent (Emphasis and each violation. added.)
Sections 6307 and contain language 6310.3 similar indicating that suspension is the “penalty imposed pursuant 6310.4____” section the By plain language provi- of these sions, the suspension under 6310.4 is a criminal § the “penalty” monetary same as a fine.
Further,
the court shall
specifies
Section 6310.4
that
order
suspension,
the
not DOT. Although
performs
DOT
act
license,
the
the court orders the
suspending the
suspension as the
result
conviction of an enumerated
offense, whether or not the offense is related to
opera-
the
tion of a motor
provisions
vehicle. These
indicate that the
legislature
intended a license
to be the direct
consequence
(i.e.,
itself)
the criminal
penalty
a conviction
offense,
of an enumerated
rather than a collateral effect.7
portion
containing
argument
7.
In
DOTs brief
that
it
law,
complied
applicable
emphasizes
with
DOT
that the court ordered
DOT,
order,
upon receipt
copy
of a
of the
Representa-
in
House of
In the course
debate
(and
proposed
6310.4
on
bill that became
tives
suspen-
to a
limited the
have
would
amendment
were not involved
days if a motor vehicle
thirty
sion
charge)
question
rise to the
giving
the conduct
proposed
act
constitutionality
raised as
was
said, “I do
Member of the House
the amendment. One
a person’s
to take
you
see
it
constitutional for
how
that he is
it is not involved
a crime
license when
driver’s
____”
Legislative
Journal —House
committing
Letterman).
(statement
Speaker immediately
Rep.
on
constitutionality
be decided
question
directed
*7
debate, the House
floor
a
of the House. After
by
the
vote
consti-
believed the bill was
majority
vote reflected that the
proceedings indicate that the
Id. at 1826. These
tutional.
suspension
a license
as the
intended to mandate
legislature
offenses, regard-
for
direct
certain alcohol-related
of whether a vehicle was involved.8
less
Driver
Department
Transportation,
In
Bureau
of
of
651, 579 A.2d
v.
134 Pa.Commonwealth Ct.
Licensing
Suny,
(1990),
of
a
question
this court considered the
whether
1027
under
6310.4 is valid when a
Section
acceptance
a motorist that
district
does
inform
under-age
for
alco-
preadjudication program
violating
into a
in
of the Crimes Code will result
a
provisions
hol
in
suspension.
Department
Prior to
Brewster v.
Suny,
of
suspension.
portion
Appellee at
In
aimed at
the
Brief for
10-11.
the
pursuant
refuting
between a
to
the licensee’s distinction
by
in
and that mandated
statutes found
the Vehicle
6310.4
Code,
emphasizes
imposes
suspension,
that
the
and ”[t]he
DOT
it
Department
impose
suspen-
merely
the
criminal court
orders the
at 20.
sion.” Id.
rule,
general
legislators
8. As a
the remarks of individual
in debate on
may
upon
floor
the
not be relied
in
the
of
House
the Senate
ascertaining legislative
they represent only
per-
because
one
intent
body.
proposing body
enacting
or an
son’s view and not
that
43, 58,
Zemprelli
Thornburgh, 47
Ct.
407 A.2d
Pa.Commonwealth
102,
Nemacolin,
(1979);
Department
109
Inc. v.
Environmental
Resources,
(1988). How-
Ct.
appeals agencies from Commonwealth pleas under Section 933 of courts common initially Code, 42 933. That section establish- the Judicial Pa.C.S. § pleas of common over jurisdiction es the courts *9 in cases in- agencies final of Commonwealth from orders Transpor- Department cluding “[determinations tation appealable following provisions under the of Title 75 vehicles): (relating to (relating judicial ... Section 1550 review).” 933(a)(l)(ii) added). (emphasis Pa.C.S. Sec- § tion 1550 of the Vehicle provides Pa.C.S. § any person that license has suspended by whose been DOT a right shall have to the court vested with jurisdiction such However, the Judicial Code. as above, Duffey’s discussed suspension pursuant Section 6310.4 in no sense involved a “determination” by DOT.
Duffey’s circumstances illustrate the through-the-looking- glass procedural failing effects of to acknowledge plain legislature intent to make the direct criminal underage drinking offenses. Here, the criminal defendant was offered the opportunity to plead but he guilty, was not informed that the statute suspension. mandates a license This may occur even where appears defendant before court or justice district rather Suny, pleading See than simply guilty on a citation form. noted above. conviction,
Upon Duffey’s the district ordered that the defendant’s license suspended, but that order was DOT, sent defendant, who had therefore no appeal. reason to file an After the appeal period for the criminal conviction ran the eventually defendant learned DOT, from time, for the first that his license was to be suspended. The defendant employed the standard method of appealing a license suspension, appeal pursu- a statutory ant to 75 Pa.C.S. In 1550. that proceeding moved to withdraw his nunc on pro grounds tunc uninformed, it was to be told only the court lacked jurisdiction to entertain such motion “collaterally attack- ing” the criminal conviction the “civil” license suspension proceeding. procedure This was not unusual and in fact appears to be the standard method of operation in this kind of case. defendant, maintaining that his loss of license is a
direct criminal penalty, appealed Court, to Superior which
291 criminal convic- from most over has jurisdiction 742, Code, 42 Pa.C.S. see Judicial tions, 742 the court be- the case to this transferred Superior Court but If this appeal. a civil cause it involves grounds claims on the defendant’s the reject court were to only remedy him his is inform that and of collateral attack from the court of pro nunc tunc appeal to seek allowance endorsing extraordinary the be pleas, we would common his appeal convic- right defendant's that result way of a only by exercised may be tion and sentence the tunc, perhaps months after nunc pro possible appeal original conviction. legislative intent effect the giving and
Acknowledging
plea, even to a
guilty
The
problems.
of these
eliminates all
issuance of a
by
initiated
offense
charge
summary
of a
understanding^.”
citation,
“voluntarily
made
must be
all
case,
of the direct
For
Pa.R.Crim.P. 59.
be
by
on the citation form
explained
must
penalties
merely
not
appears,
whom the defendant
court before
Leonhart,
Commonwealth v.
monetary penalty.
possible
petition
(1986),
494,
viction notice of filing a “(a) appeal perfected by shall be part: [A]n or other (30) the conviction days after appeal thirty within notice of is taken.” With order from which the final sentence, the conviction and the defendant can timely ap- peal his conviction to the court of common pleas and raise any defenses has a trial de novo before the court on 86(f). the criminal conviction. Further, Pa.R.Crim.P. any appeal must Superior Court, be taken for the proper appellate exercise its jurisdiction over criminal convictions for offenses set forth Title 18 of the Consoli- dated Statutes.
Although we believe this matter should have remained Court, Superior with the parties actions of the have perfected appellate jurisdiction in our court. Pa.R.A.P. See 741(a) (jurisdiction an appellate perfected if the appellee timely fails to unless the object, court orders otherwise, notwithstanding provision any vesting law jurisdiction of such appeal appellate court). another When the accepted district justice Duffey’s guilty plea to the criminal offense of underage possession of alcoholic beverages, without informing first him of the mandatory criminal suspension, that was a violation right of his process, which, minimum, due at a invalidates Also, the plea. the imposition of the criminal penalty license suspension without notice the sentence and the failure to of any right advise to appeal the criminal convic- pursuant tion to Pa.R.Crim.P. 86 constitute further viola- tions of due process. These violations render the sentence of license suspension imposed upon invalid, Duffey they and warrant the sustaining of his appeal.
The principle that we must is recognize that a license suspension imposed pursuant to 18 Pa.C.S. 6310.4 is the § mandatory criminal upon sentence of underage conviction drinking, and a defendant must be afforded all normal procedural protections in sentence, relation including notice that suspension will result before a valid, bemay notice at the time of conviction and sentencing that a imposed will be notice right appeal defendant his from the conviction and pursuant sentence to the Rules of Criminal Procedure. We must overrule prior our decisions in Suny and Heeter filed will entertain this court hold that they because suspensions 1550 from 75 Pa.C.S. under in- may jurisdiction 6310.4. Our to Section pursuant narrowest of on the only suspensions in these voked a notice of received person that a who claim (e.g., grounds who was person same is not the DOT suspension from offense). drinking underage convicted O, J., dissents. PALLADIN
ORDER the order of April, NOW, day 13th AND this SA at No. Allegheny County Pleas of of Common Court 21, 1990, reversed, 2475-90, November dated suspen- his driver’s license from Duffey of Ian M. is sustained. sion
PELLEGRINI, concurring. Judge, *12 license sus- reversal of the majority’s I concur with this is an reasoning its that disagree with but pension, in a criminal imposition penalty illegal from the appeal Court. Because Superior appealable to properly case an administrative action of statutory appeal this is (PennDot) Transportation’s Department Pennsylvania license, appeal properly this of a driver’s this court. before as Ian M. this are follows: that underlie
The facts the Common- age charged by was Duffey (Duffey), then Code, 18 Pa.C.S. 6308(a) of the Crimes under Section wealth he re- drinking. charged, When 6308(a), underage with § which, in accordance with citation ceived a non-traffic side, him to allowed on the reverse instructions contained to the specified fine costs guilty mailing plead by instructions, pled Duffey magistrate. to those Pursuant and, citation, on signing space provided in the guilty costs, mailed it back fine and check for the together with a justice.1 the district district accepted the matter, and the as far as the prosecution involved, was over.
Unbeknownst to Duffey, the district justice then complet- (5-88) ed PennDot Form DL-21C “Report titled of Court Ordering the Suspension Operating Privileges As a Re- sult of a Violation Chapter 63 Title 18”.2 part As report, that there is pre-printed block containing pro- posed stating order that the operating privileges of suspended licensee be in accordance with provisions 6310.4 6310.4, Crimes 18 Pa.C.S. is to be signed part as of completing report. Duffey, prior pleading or guilty any time, at relevant never received notice subject that he was to such a such an order was going to had be or been entered. procedure plead 1. The summary cases is set forth in Rule 59 of the Pa.R.Crim.Pro. appears page 2. Footnote 2 on 295. *13 (5-88) filed Form DL-21C of PennDot following copy ais
2. The case: justice in this district *14 contends that pled guilty since he to Duffey pay only the costs, acceptance plea by fine and of his the Common- imposition any and, wealth precludes penalty, additional therefore, PennDot no justification has li- suspend his Duffey cense. PennDot contends that what attempting collaterally do is attack the criminal conviction which must raised in a motion to set a guilty plea be aside and may be raised in the suspension not license appeal. argues
While PennDot that the impropriety of the addi- tional must raised in penalty the criminal conviction which nothing has to do with the suspension pro- ceeding, the order mandatory upon which it relies is con- tained on a Report provides PennDot Form which PennDot which, justices, district and all intents purposes, and initiates the suspension proceeding. PennDot, a initiated, stranger action, to the criminal caused and is responsible order, for the depriving issuance thereby “bargain” Duffey the Commonwealth offered through guilty plea procedure as authorized Pa.R.Crim.Pro. 59. For all practical purposes, the order in question was part not proceeding the criminal Duffey between and the Commonwealth, part but PennDot’s license proceeding.
Separate apart from the violation of Duffey’s due rights process by modifying the without penalty notifying him that such a penalty imposed could be notifying not any him at issued, relevant time that such an order was justice district had no jurisdiction increase the penalty once the accepted, imposing was only a fine and costs. accepts When district guilty plea and sentence is prescribed as the Rules of Criminal Procedure, he or she is also any divested of authority to impose any additional and any imposition such is a nullity. Because it is nullity, then no valid order exists imposing penalty suspending Duffey’s license, and be- cause such a requirement is necessary to meet the statutory mandates contained in of the Crimes Duffey’s appeal must be sustained.
SMITH, Judge, dissenting.
collaterally attack
may
a licensee
principle
civil license
criminal conviction
underlying
conclude,
To
as
firmly
has
established.
been
proceedings
*15
the
does,
inapplicable
principle
that this
Majority
the
judice misappre
in the case sub
presented
factual scenario
are civil in
a license
from
that
hends
Bureau
Transportation,
Department
nature.
of Traf
of
647, 432
Ct.
v.
60 Pa.Commonwealth
Safety Calloway,
fic
Moreover,
legally
as
accurate
(1981).
accepting
A.2d 322
against
the license
premise
that
itself,
signifi
criminal penalty
Duffey represented
more
rule becomes even
of
attack
cance
the collateral
challenge
wishes to
his
her
Where licensee
paramount.
conviction,
allowance of an
remedy
is to seek
Transportation,
Department
tunc. See
appeal
pro
nunc
of
Weniger,
v.
Pa.
Licensing
Driver
136 Common
Bureau of
v.
(1990);
Commonwealth
603,
In a recent
Court
Bursick,
6,
(1990),
291
the Court stated
526 Pa.
584 A.2d
civil
for an
improper
proceeding
it is
in a collateral
that
of
criminal convic
appellant
“impugn
validity
Commonwealth, 68
citing Johnson v.
tion,”
Pa.Common
addition,
384,
(1982). In
the Su
A
decided
this Court reiterate
litany
by
of cases
proceedings challenging
rule
civil
collateral attack”
Transportation,
Department
See
suspension.
Heeter,
v.
Licensing
Bureau
Driver
128 Pa.Common
Department
v.
480,
(1989);
Radice
wealth Ct.
monwealth Ct.
BOARD OF COMMISSIONERS OF SOUTH WHITEHALL
TOWNSHIP, COUNTY, Pennsylvania, LEHIGH
Appellant, BROTHERS, INC., Appellee. TOLL Pennsylvania. Commonwealth Court Argued Dec. 1991. April
Decided 1992.
Reargument Denied June 1992.