COM., DEPT. OF TRANSP. v. Johns

621 A.2d 1064, 153 Pa. Commw. 312, 1993 Pa. Commw. LEXIS 69

• Court: Commonwealth Court of Pennsylvania
• Decided: February 5, 1993
• Status: Published

Opinions

PELLEGRINI, Judge.

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals an order of the Court of Common Pleas of Allegheny County (trial court) sustaining the appeal of Jeffrey A. Johns (Licensee) from a one-year license revocation imposed by PennDOT under Section 1532(a) of the Vehicle Code (Code), 75 Pa.C.S. § 1532(a).

Licensee was convicted of a felony for receiving stolen property.¹ Pursuant to Section 6323 of the Code,² the Clerk of Court sent a “Report of the Clerk of Court Showing the Conviction of Any Act in which a Judge Determines that a Motor Vehicle was Essentially Involved” (Report)³ to Penn-DOT listing Licensee’s conviction. Based on the Report, PennDOT notified Licensee that his license was revoked for one year pursuant to Section 1532(a) of the Code,⁴ because the judge determined that a vehicle was essentially involved in the commission of the felony for which he was convicted.

Licensee appealed the revocation to the trial court. Penn-DOT introduced the Report into evidence and rested. Licensee’s counsel made a Motion for Compulsory Nonsuit. He argued that the revocation could not be based solely on a conviction for receiving stolen property. Moreover, he argued that only car parts were involved so the commission of the felony did not “essentially involve” a vehicle. Although Licensee’s counsel referred to the facts he alleges were presented to the criminal court, no transcript or records of the criminal court proceeding were introduced. Agreeing with Licensee’s argument, the trial court granted the requested nonsuit.⁵ PennDOT then filed this appeal.⁶

While it disagrees with Licensee’s contention that “receiving stolen property” cannot be the basis for revocation under Section 1532 of the Code, PennDOT contends that it was improper for the trial court to even address that issue. To do so, PennDOT contends, is an impermissible collateral attack on the criminal court’s determination that a vehicle was used in the commission of a felony. Once it introduced the Report stating that a judge made such a determination, Penn-DOT claims that it made out its case. While an attack can be made on the regularity of the Report, PennDOT contends no relitigation of that determination is permitted. We agree.

We addressed the effect that the introduction of the Report has in appeals of license suspensions and revocations in Southerland v. Department of Transportation, 127 Pa.Commonwealth Ct. 349, 353, 561 A.2d 1276, 1278 (1989). There, we held that the Report to PennDOT, which stated on its face that licensee was convicted of a felony and that a judge determined that a vehicle was essentially involved in that felony, was sufficient evidence to establish that a vehicle was essentially involved in the commission of the felony. In doing so, we stated that just as in all license suspension and revocation cases based on a conviction, a licensee may not collaterally attack a criminal conviction on appeal.⁷ Similarly, the trial court on appeal is not in a position to review the criminal court judge’s determination that a vehicle was essentially involved, which is based on facts admitted to or proven in the criminal proceeding leading to the conviction. The trial court is limited to deciding only the fact of a conviction, the fact that a judge determined that a vehicle was essentially involved and whether PennDOT acted properly in imposing the revocation. See Southerland; Department of Transportation, Bureau of Driver Licensing v. Dauer, 96 Pa.Commonwealth Ct. 541, 507 A.2d 1299 (1986).

In this case, just as in Southerland, the Report established on its face that Licensee was convicted of a felony and that a judge determined that a vehicle was essentially involved. The burden then shifted to Licensee to present rebuttal evidence. To properly challenge the revocation, Licensee must establish that the criminal court never made the determination that a vehicle was essentially involved. To be successful in that challenge, Licensee must introduce the docket entries in the felony case which gave rise to the revocation to show that there is no entry or order evidencing a determination that a vehicle was essentially involved in the commission of the felony.⁸

Because an impermissible collateral attack was made on the underlying determination, we vacate the decision of the trial court. However, because a nonsuit was granted and Licensee has not yet had the opportunity to rebut PennDOT’s case, we will remand.

ORDER

AND NOW, this 5th day of February, 1993, the order of the Court of Common Pleas of Allegheny County, No. SA 2697 of 1991, is vacated, and the case is remanded so that the Licensee can present rebuttal evidence.

Jurisdiction relinquished.

1 . Section 3925 of the Crimes Code, 18 Pa.C.S. § 3925.

2 . Section 6323 of the Code, 75 Pa.C.S. § 6323, provides:

(1) The clerk of any court of this Commonwealth, within ten days after final judgment of conviction or acquittal or other disposition of charges under any of the provisions of this title ... shall send to the department a record of the judgment of conviction,' acquittal or other disposition.

(2) A record of the judgment shall also be forwarded to the department upon conviction or acquittal of a person of a felony, ... in the commission of which the judge determines that a motor vehicle was essentially involved.

3 . The Report is a form provided by PennDOT to Clerks of Court to assist them in complying with Section 6323 of the Code.

4 . Section 1532(a) of the Code, 75 Pa.C.S. § 1532(a), provides:

The department shall revoke the operating privilege of any driver for one year upon receiving a certified record of the driver's conviction of or an adjudication of delinquency based on any of the following offenses:

(1) Any felony in the commission of which a court determines that a vehicle was essentially involved.

5 . We do not- address the propriety of a grant of nonsuit in a statutory appeal.

6 . Our scope of review in a license suspension case is limited to determining whether the findings of the trial court are supported by competent evidence, whether there has been an erroneous conclusion of law or whether the trial court’s decision demonstrates a manifest abuse of discretion. Stephenson v. Commonwealth, Department of Transportation, Bureau of Traffic Safety, 115 Pa.Commonwealth Ct. 592, 540 A.2d 990 (1988).

7 . Commonwealth, Department of Transportation, Bureau of Traffic Safety v. Edwards, 103 Pa.Commonwealth Ct. 43, 519 A.2d 1083 (1987); Department of Transportation, Bureau of Traffic Safety v. Lea, 34 Pa.Commonwealth Ct. 310, 384 A.2d 269 (1978).

8 . The order and docket entry should indicate whether the judge made the determination, because the clerk of courts is required to docket any order of a judge, and an order is not effective and appealable until it has been entered upon the appropriate docket. Pa.R.Crim.P. 9024 and Pa.R.A.P. 301(a).